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The 
^ORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 



EXECUTIVE ORDERS 



IN ADDITION 

Final Decision Letter 




PROPOSED RULES 
Commerce 

Environment, Health, and Natural Resources 
Insurance 
Public Education 



RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

RECEJVED 

CONTESTED CASE DECISIONS 

JUN 17 1993 

ISSUE DATE: June 15, 1993 



LAW LIB.RARY 



Volume 8 • Issue 6 • Pages 456 - 502 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMTNTSTRATTVE rODF, 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



I 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public ma>' request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule tliat 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearmgs (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agencv or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolma 27611-7447, (919) 
733-2678. 



I 



NORTH 
CAROLINA 
REGISTER 



ISSUE CONTEIVTS 



EXECUTIVE ORDERS 

Executive Orders 13-16 



456 




n. IN ADDITION 

Voting Rights Act 



460 



Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



III. PROPOSED RULES 
Commerce 

Savings Institutions Division: Savings 

Institutions Commission 461 

Environment, Health, and 

Natural Resources 

Departmental Rules 465 

Health Services 465 

Insurance 

Medical Database Commission . . 463 
Public Education 

Elementary and Secondary 470 

IV. RRC OBJECTIONS 476 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 479 

VI. CONTESTED CASE DECISIONS 

Index to AU Decisions 480 

Text of Selected Decisions 
92 OSP 0455 484 

VII. CUMULATIVE INDEX 501 



NORTH CAROLINA REGISTER 

Publication Schedule 

(January 1993 - December 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


*Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


******* 


♦♦=(<**** 


if:lfJfJf:lfJfJr 


*****>!<* 


******* 


******* 


******* 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/31/93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/93 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


10/01/93 


09/10/93 


09/17/93 


10/16/93 


10/31/93 


11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


11/20/93 


01/04/94 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


12/31/93 


01/20/94 


03/01/94 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 



* The "Earliest Effective Date" is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifter of Rules five (5) business days before the 1st business day of the next 
calendar month. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 13 

AMENDING EXECUTIVE ORDER 

NUMBER 10, CONCERNING THE 

QUALITY LEADERSfflP 

AWARDS COUNCIL 

By the authority vested in me as Governor by the 
laws and constitution of North Carolina, IT IS 
ORDERED: 

Sections 2 and 3 of Executive Order Number 10 
are hereby amended to read: 

Section 2. Membership. 

1 . The Council shall consist of not more than 
thirty members, including: 

• • • 



By the authority vested in me as Governor by the 
laws and Constitution of this State, IT IS OR- 
DERED: 

Section 5 of Executive Order 1 . is hereby amen- 
ded to delete subsection (b) (which prohibits a full- 
time State employee subject to the Order from 
holding any other public employment for compen- 
sation). Subsection (c) shall be redesignated (b), 
but shall otherwise remain the same. 

This Order is effective immediately. 

Done in Raleigh, North Carolina, this 20th day 
of May, 1993. 

EXECUTIVE ORDER NUMBER 15 
COORDINATING COMMITTEE ON THE 
AMERICANS WITH DISABILITIES ACT 



No more than eleven ranking officials of 
organizations receiving a Quality Leader- 
ship Award ("Award") from the State; 



N. A member recommended by the President 

Pro Tempore of the Senate. 

Section 3. Chair. Terms, and Vacancies. 

Those members under subsection (J) above shall 
serve three-year terms, which shall start in the 
year after winning the Award. The members 
under subsections (E), (F), and (N) above shall 
serve at the pleasure of the Governor. The Gover- 
nor shall fill all vacancies. However, should a 
vacancy occur in a seat held by a member recom- 
mended by the Lieutenant Governor, the Speaker 
of the House, or the President Pro Tempore of the 
Senate, the Governor shall fill that vacancy only 
after recommendation by the appropriate official. 
Tlie Council shall elect its Chair from among its 
members . 



WHEREAS, the Americans with Disabilities Act 
("ADA") was enacted by the United States Con- 
gress on July 26, 1990, to expand the civil rights 
of individuals with disabilities in the areas of 
employment, transportation, public accommoda- 
tions and communications; and 

WHEREAS, the primary objective of the ADA 
is to require employers and public service provid- 
ers to eliminate barriers, practices, or policies that 
may deprive individuals with disabilities of the full 
use and enjoyment of public buildings, employ- 
ment, transportation, accommodations, and com- 
munications; and 

WHEREAS, a process for informing state agen- 
cies of their responsibilities under the ADA and 
alternatives for fulfilling those responsibilities, and 
for resolving disputes about those responsibilities, 
would assist the State in implementing the ADA; 

NOW, THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
North Carolina, IT IS ORDERED: 



This Executive Order shall be effective immedi- 
ately. 

Done in the Capitol City of Raleigh, North 
Carolina, this the 20th day of May, 1993. 

EXECUTIVE ORDER NUMBER 14 

AMENDING EXECUTIVE ORDER 1 

CONCERNING THE BOARD OF ETHICS 



Section L Establishment 

There is hereby established the Coordinating 
Committee on the ADA. 



Section 2. Purpose 

The Committee shall bring representatives from 
every state agency together to coordinate each 
agency's self-evaluation and compliance planning 
under the ADA. 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



456 



EXECUTIVE ORDERS 



Each agency shall develop and implement forth- 
with its ADA Compliance Plan. Individuals with 
disabilities must have full access to public build- 
ings, employment, transportation, accommoda- 
tions, and communications as soon as possible. 

Section 3. Duties 

The Committee shall be responsible for the 
following: 

(a) coordinating agency compliance with the 
ADA as it relates to other federal and 
state laws and regulations affecting indi- 
viduals with disabilities; 

(b) informing and advising state agencies 
about their obligations and means for 
meeting obligations under the ADA such 
as self evaluations, job task analyses, 
procedures to handle requests for accom- 
modations, facility and communications 
accessibility, transportation, and dead- 
lines for action; 

(c) facilitating the adoption and publication 
of formal and informal grievance proce- 
dures within each agency to promptly and 
equitably resolve complaints of agency 
noncompliance with the ADA; with 
particular emphasis on the use of alterna- 
tive means of dispute resolution, includ- 
ing settlement negotiations, conciliation, 
facilitation. mediation. fact-finding, 
hearings, and arbitration, as appropriate 
and authorized by law; 

(d) supervising the implementation and peri- 
odic revision of an ADA Transition Plan 
for each agency regarding the removal of 
environmental and communication barri- 
ers in state facilities, whether owned or 
leased; 

(e) providing a forum for speakers to inform 
the Committee and others in state govern- 
ment about developments concerning 
acceptable accommodations, cost effec- 
tiveness data for equipment and transpor- 
tation alternatives, hiring practices and 
case law; and 

(f) ensuring that its decisions and those of its 
member agencies in creating their ADA 
Compliance Plans are made with the 
input of employees with disabilities or 
representatives of organizations which 
serve disabled persons. 

Section 4. Membership 

The following indi\iduals or their designees shall 
serve as members of the Committee: 



(1) Lieutenant Governor 

(2) Secretary of State 

(3) Attorney General 

(4) State Treasurer 

(5) Superintendent of Public Instruction 

(6) Commissioner of Insurance 

(7) Commissioner of Agriculture 

(8) Commissioner of Labor 

(9) State Auditor 

(10) President Pro Tempore of the Senate 

(1 1) Speaker of the House of Representatives 

(12) Chief Justice of the Supreme Court of 
North Carolina 

(13) President of the University of North 
Carolina System 

(14) President of the System of Community 
Colleges 

(15) Secretary of Commerce 

(16) Secretary of Environment, Health, and 
Natural Resources 

(17) Secretary of Crime Control and Public 
Safety 

(18) Secretary of Cultural Resources 

(19) Secretary of Human Resources 

(20) Secretary of Transportation 

(21) Secretary of Correction 

(22) Secretary' of Administration 

(23) Secretary of Revenue 

(24) Director of the Office of State Personnel 

Section 5. Chairperson 

The Chairperson shall be the Secretary of Ad- 
ministration or her designee, who shall serve at the 
Governor's pleasure. The Chairperson may 
designate smaller subcommittees, divided accord- 
ing to expertise, to work on pertinent topics and 
report to the full Committee. 

Section 6. Meetings 

The Committee shall meet not less than quarterly 
at the call of the chairperson. 

Section 7. Quorum 

A simple majority of the members shall consti- 
tute a quorum for the purpose of conducting 
business. 

A vote will require a simple majority of the 
members of the Committee present. 

Section 8. Reports 

(a) The Committee shall prepare a report to the 
Governor on or before October 1. 1993, and 
annually thereafter. 

(b) The Committee shall report quarterly to the 
Joint Legislative Commission on Governmental 



457 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



EXECUTIVE ORDERS 



Operations. 

Section 9. Administration 

Members of the Coordinating Committee sliall 
receive necessary travel and subsistence expenses 
in accordance with the provisions of N.C.G.S. 
120-3.1 or 138.5. 

The Department of Administration shall provide 
administrative and staff support services required 
by the Coordinating Committee. While no one 
from the Governor's Advocacy Council for Per- 
sons with Disabilities (GACPD) shall be a member 
of the Committee, GACPD shall provide the 
Committee with technical assistance on behalf of 
people with disabilities and serve as an information 
clearinghouse. 

Section 10. Effect on Other Executive Orders 

Executive Order Number 179 of the Martin 
Administration is hereby rescinded. All other 
Executive Orders or portions of Executive Orders 
inconsistent herewith are hereby rescinded. 

Section 11. Effective Date 

TTiis executive order shall be effective immedi- 
ately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 20th day of May, 1993. 

EXECUTIVE ORDER NUMBER 16 

THE GEOGRAPHIC INFORMATION 

COORDINATING COUNCIL AND THE 

CENTER FOR GEOGRAPHIC 

INFORMATION AND ANALYSIS 

WHEREAS, geographic information is an impor- 
tant strategic resource for the State of North 
Carolina; 

WHEREAS, increasingly complex decisions, 
overlapping governmental responsibilities, and 
limited financial resources demand that agencies 
work together to develop and utilize geographic 
information; 

WHEREAS, North Carolina has a history of 
effective utilization of geographic information and 
geographic information systems ("GIS") technolo- 
gy both at the State and Local level; 

WHEREAS, geographic information and GIS 
technology are now being developed and used by 
many agencies and organizations in North Caroli- 
na; 



WHEREAS, geographic information and GIS 
technology can only be fully and practically uti- 
lized with a statewide focus and cooperative effort; 

NOW, THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
the State of North Carolina, IT IS ORDERED: 

Section 1. Establishment. 



With the concurrence of the Information Re- 
source Management Commission ("IRMC"), there 
is hereby reestablished the Geographic Information 
Coordinating Council ("Council"). 

Section 2. Duties. 

The Council shall guide the Center for Geo- 
graphic Information and Analysis ("CGIA") and 
establish the State's direction in the utilization of 
geographic information, GIS systems, and other 
related technologies. The Council is responsible 
for (a) strategic planning, (b) resolution of policy 
and technology issues, (c) coordination, direction 
and oversight, and (d) advising the Governor, the 
Legislature, and the IRMC as to needed directions, 
responsibilities, and funding regarding geographic 
information. This statewide geographic informa- 
tion coordination effort seeks to further coopera- 
tion among State, Federal and Local government 
agencies; academic institutions; and the private 
sector to improve the quality, access, cost-effec- 
tiveness and utility of North Carolina's geographic 
information and to promote geographic information 
as a strategic resource for the State. 

Section 3. Center for Geographic Information 
and Analysis. 

Coordination of geographic information is the 
responsibility of the CGIA. This responsibility 
includes GIS production and consulting services; 
technical support including assistance in planning, 
installing, and using GIS systems; a wide variety 
of GIS-related training services and education 
programs; a clearinghouse for the exchange of 
geographic information and services; and staff 
support for the Council and its committees. CGIA 
reports to the Office of State Planning. 

Section 4. Membership. 

The Council shall consist of 17 members, or 
their designees, as follows: 

a) The Secretary of the Department of 
Environment, Health, and Natural Re- 
sources; 

b) The Secretary of Transportation; 

c) The Secretary of Administration; 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



458 



EXECUTIVE ORDERS 



d) The Secretary of Commerce; 

e) The Secretary of State; 

f) The Commissioner of Agriculture; 

g) The Superintendent of Public Instruction; 
h) The head of an at-large State agency to 

be appointed by the Governor; 

i) The State Budget Officer; 

j) The State Planning Officer; 

k) One representative elected annually from 

the State Government User Committee; 

1) One representative elected annually from 

the Affiliated User Group Committee; 

m) One representative employee of a County 
Government to be appointed by the Gov- 
ernor; 

n) One representative employee of a Munic- 

ipal Government to be appointed by the 
Governor; 

o) One representative employee of the Fed- 

eral Government, who is stationed in 
North Carolina, to be appointed by the 
Governor; 

p) One representative from the Lead Re- 

gional Organizations, to be appointed by 
the Governor; and 

q) One non-government representative in 

North Carolina, to be appointed by the 
Governor. 

The Deputy State Controller for Information 
Resource Management shall serve as a non-voting, 
ex officio member. The Governor shall appoint a 
Chair from among the membership to serve for a 
one-year period. Except for members "a-g" and 
"i-1" above, each member shall serve three-year 
terms. 

Section 5. Administration and Expenses. 

The Director of CGIA shall be secretary of the 
Council and provide staff support as it requires. 
Members of the Council shall receive necessary 
travel and subsistence expenses as allowed by 
North Carolina law. 



b) State Mapping Advisory Committee 
("SMAC") : The Council shall select the 
Chair of SMAC, which shall be orga- 
nized and operated in a manner accept- 
able to the United States Geological 
Survey's ("USGS") National Mapping 
Division. Membership shall not be limit- 
ed. Members from Federal agencies may 
not vote, but the Council, upon recom- 
mendation by the SMAC Chair, may 
permit other members to vote. 

The SMAC shall consolidate statewide 
mapping requirements into a single annu- 
al report to the USGS; inform the users 
of geographic information about the 
status of mapping programs and the 
availability of map materials from USGS; 
and attempt to gain statewide support for 
financing cooperative programs with 
USGS. The Committee shall also advise 
the Council on issues, problems, and 
opportunities relating to USGS programs 
and information. 

c) Affiliated GIS User Group Committee : 
Membership shall consist of representa- 
tives from Local and Federal govern- 
ment, private industry, universities, and 
the General Assembly. TTie committee 
shall elect its Chair and advise the Coun- 
cil on issues, problems, and opportunities 
relating to the use of GIS systems. 

Section 7. Rescission. 



Executive Order 147 of the Martin Administra- 
tion is hereby rescinded. 

This Order is effective immediately. 

Done in the Capital City of Raleigh, this 21st 
day of May, 1993. 



Section 6. Committees. 

The Council may establish work groups as 
needed, and shall oversee the following standing 
committees: 



a) 



State Government GIS User Committee: 



Membership shall consist of representa- 
tives from all interested State government 
departments. Tlie committee shall elect 
its Chair and advise the Council on is- 
sues, problems, and opportunities relating 
to GIS. 



459 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



IN ADDITION 



G.S. 1 20-30. 9H, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change affecting 
voting " under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina Register . 



JPT:LLT:TGL:tlb 
DJ 166-012-3 
93-1099 



U.S. Department of Justice 

Civil Rights Division 

Voting Section 

P.O. Box 66128 

Washington, D.C. 20035-6128 



May 17, 1993 

DeWitt F. McCarley, Esq. 

City Attorney 

P. O. Box 7207 

Greenville, North Carolina 27835-7207 

Dear Mr. McCarley: 

This refers to five annexations (Ordinance Nos. 2558 and 2559 (1992) and 2561, 2562, and 2563 
(1993)) and the designation of the annexed areas to election districts for the City of Greenville in Pitt County, 
North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, 
as amended, 42 U.S.C. 1973c. We received your submission on March 19, 1993. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 5 
(28 C.F.R. 51.41). 



Sincerely, 

James P. Turner 

Acting Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



460 



PROPOSED RULES 



TITLE 4 - DEPARTMENT OF 
COMMERCE 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the Savings Institutions Division 
intends to amend rule cited as 4 NCAC 16G 
.0312. 

1 he proposed effective date of this action is 
September 1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on July 16, 1993 at the 3rd Floor Hearing 
Room. 1110 Navaho Drive, Raleigh, NC 27609. 



Jxeason for Proposed Action: To define accept- 
able alternative provisions in Plans of Conversion. 

i^omment Procedures: Anyone may present 
comments at the hearing. Written comments, or 
Notice of Intent to make oral comments, shall be 
received by the Savings Institutions Division, 1110 
Navaho Drive, Suite 301. Raleigh, NC 27609, at 
least 24 hours prior to the hearing. 

CHAPTER 16 - SAVINGS INSTITUTIONS 

DIVISION: SAVINGS INSTITUTIONS 

COMMISSION 

SUBCHAPTER 16G - MUTUAL TO STOCK 
CONVERSIONS 

SECTION .0300 - GENERAL PRINCIPLES 
FOR CONVERSIONS 

.0312 OPTIONAL PROVISIONS IN PLAN 
OF COISfVERSION 

The plan of conversion may provide any or all of 
the following; 

(1) That the applicant may commence the 
direct community offering or the public 
offering, or both, concurrently with or at 
any time during the subscription offering. 
The subscription offering may be com- 
menced concurrently with or at any time 
after the mailing to members pursuant to 
Rule .0607 of this Subchapter of the 
proxy statement authorized for use by the 
administrator. The subscription offering 
may be closed before the meeting of the 



members held to vote on the plan of 
conversion, provided that the offer and 
sale of capital stock shall be conditioned 
upon the approval of the plan of conver- 
sion by the members as provided in 
Section .0600 of this Subchapter. 

(2) That directors, executive officers, and 
employees of the converting savings bank 
shall receive, without payment, nontrans- 
ferable subscription rights to purchase 
shares of capital stock, to the extent that 
shares are available after satisfying the 
subscriptions of eligible account holders, 
supplemental eligible account holders, 
and voting members provided for under 
Paragraphs (2), (4) and (5) of Rule .031 1 
of this Section. The shares shall be 
allocated among directors, officers, and 
employees on an equitable basis such as 
by giving weight to length of service, 
compensation, and position, subject to the 
limitation in Paragraph (7) of Rule .0311 
of this Section on the amount of shares 
which may be purchased by any person, 
associate thereof, or group of affiliated 
persons or group of persons otherwise 
acting in concert. 

(3) That any account holder receiving rights 
to purchase stock in the subscription 
offering shall also receive, without pay- 
ment, nontransferable subscription rights 
to purchase up to one percent of the total 
offering of shares of capital stock, to the 
extent that such shares are available after 
satisfying the subscriptions provided for 
under Paragraphs (2), (4), and (5) of 
Rule .0311 of this Section, subject to 
such conditions as may be provided in 
the plan of conversion. In the event of 
an oversubscription for such additional 
shares, the shares available shall be 
allocated among the subscribing eligible 
account holders, supplemental eligible 
account holders, and voting members on 
such equitable basis, related to the 
amounts of their respective subscriptions, 
as may be provided in the plan of conver- 
sion. 

(4) That the applicant may require members 
to return by a reasonable date certain a 
postage-paid written communication 
provided by the applicant requesting 
receipt of a subscription offering circular, 
or a preliminary or final offering circular 



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PROPOSED RULES 



(5) 



(6) 



(7) 



(8) 



in an offering pursuant to Paragraph (10) 
of this Rule, in order to be entitled to 
receive an offering circular from the 
applicant; provided, that the subscription 
offering or the offering pursuant to Para- 
graph (10) of this Rule shall not be 
closed until 30 days after the mailing by 
the applicant to members of the 
postage-paid written communication. If 
the subscription offering or the offering 
pursuant to Paragraph (10) of this Rule is 
not commenced within 45 days after the 
meeting of members, any converting 
savings bank adopting this optional 
provision shall transmit not more than 30 
days prior to the commencement of the 
subscription offering or the offering 
pursuant to Paragraph (10) of this Rule to 
each member who had been furnished 
with proxy solicitation materials, written 
notice of the commencement of the 
offering which notice shall state that the 
converting savings bank is not required to 
furnish an offering circular to a member 
unless the member returns by a 
reasonable date certain the postage-paid 
written communication provided by the 
converting savings bank requesting 
receipt of an offering circular. 
That the applicant may require eligible 
account holders and supplemental eligible 
account holders who are not voting 
members pursuant to Rule .0608 of this 
Subchapter to return by a reasonable date 
certain a postage-paid written 

communication in accordance with the 
procedure established in Paragraph (4) of 
this Rule. 

That any insignificant residue of shares 
of the converting savings bank not sold in 
the subscription offering or in a public 
offering or direct community offering 
may be sold in such other manner as 
provided in the plan of conversion with 
the written consent of the administrator. 
That the number of shares which any 
person or group of persons affiliated with 
each other or otherwise acting in concert 
may subscribe for in the subscription 
offering may be made subject to a limit 
of not less than one percent of the total 
offering of the shares. 
That any person exercising subscription 
rights to purchase capital stock shall be 
required to purchase a minimum number 



of shares but the aggregate price for any 
minimum share purchase shall not exceed 
five hundred dollars ($500.00). 

(9) That the converted savings bank shall 
issue and sell, in lieu of shares of its 
capital stock, units of securities 
consisting of capital stock and long-term 
warrants or other equity securities, in 
which event any reference in the 
provisions of this Subchapter to capital 
stock shall apply to such units of equity 
securities unless the context otherwise 
requires. 

(10) That, instead of a separate subscription 
offering, all subscription rights issued in 
connection with the conversion shall be 
exercisable by delivery of properly 
completed and executed order forms to 
the underwriters or selling group for the 
public offering or pursuant to any other 
procedure, subject to the applicant 
demonstrating to the administrator the 
feasibility of the method of exercising 
such right and to such conditions as shall 
be provided in the plan of conversion. 

(11) That the administrator may approve such 
other equitable provisions as necessary to 
avert imminent injury to the converting 
savings bank. 

(12) That the proxy statement required by 
Rule .0607 of this Subchapter may be in 
summary form, provided: 

(a) A statement is made in bold-faced type 
on the summary proxy statement that a 
more detailed description of the 
proposed transaction may be obtained 
by returning an attached postage-paid 
postcard or other written 
communication requesting a 
supplemental information statement 
which, together with the summary 
proxy statement, complies with the 
requirements of Form PS contained in 
the Application for Conversion. 

(b) The date on which the summary proxy 
statement is mailed to members will be 
deemed the date on which notice is 
given for purposes of Rule .0607 of this 
Subchapter. Without the prior written 
consent of the administrator, the 
meeting of members shall not be held 
less than 20 days after the date on 
which the supplemental information 
statement is mailed to requesting members. 

(c) The supplemental information statement 



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462 



PROPOSED RULES 



required to be furnished to members 
pursuant to Subparagraph (a) of this 
Paragraph may be combined with Form 
OC, if the subscription offering is 
commenced concurrently with or during 
the proxy solicitation period pursuant to 
Paragraph (1) of this Rule, 
(d) The form of the summary proxy 
statement has been approved by the 
administrator. 

(13) That, in the event that the converting 
institution is establishing a tax-qualified 
employee stock ownership plan (ESOP) 
for the benefit of its employees, then 
notwithstanding the priorities established 
under Subparagraphs (2), (4), and (5) of 
Rule .0311 of this Section, the plan of 
conversion may provide that such ESOP 
may purchase up to 10 percent of the 
aggregate shares offered in the 
conversion prior to offering any shares to 
eligible account holders, supplemental 
eligible account holders or other voting 
members. 

(14) That eligible accountholders shall be 
divided into two subcategories for 
purposes of determining the aggregate 
number of shares of conversion stock 
allocated to be purchased by such 
accountholders in each subcategory: 
those whose permanent residence is 
within the market area of the converting 
institution and those whose permanent 
residence is outside the market area of 
the converting institution. The plan of 
conversion shall provide: 

(a) That each eligible accountholder who 
resides within the applicant's market 
area shall receive nontransferable 
subscription rights to purchase a 
number of shares based on such 
accountholder's qualifying deposit 
balance up to the maximum purchase 
limitation established pursuant to Rule 
■031 1(7) of this Section; provided that 
the aggregate number of shares of 
conversion stock to be allocated for 
purchase by eligible accountholders 
within the converting institution's 
market area shall equal that number of 
shares (rounded to the nearest whole 
number) determined by multiplying the 
total number of shares of stock to be 
sold in the offering times a fraction the 
numerator of which is the sum of 



ib) 



£cl 



£d} 



qualifying deposits held by eligible 
accountholders residing inside the 
market area and the denominator of 
which is the sum of all qualifying 
deposits. 

TTiat each eligible accountholder who 
resides outside the applicant's market 
area shall receive nontransferable 
subscription rights to purchase a 
number of shares based on such 
accountholder's qualifying deposit 
balance up to the maximum purchase 
limitations established pursuant to Rule 
.031 1(7) of this Section; provided that 
the aggregate number of shares of 
conversion stock to be allocated for 
purchase by eligible accountholders 
outside the converting institution's 
market area shall equal that number of 
shares (rounded to the nearest whole 
number) determined by multiplying the 
total number of shares to be sold in the 
offering times a fraction the numerator 
of which is the sum of qualifying 
deposits held by eligible accountholders 
residing outside the converting 
institution's market area and the 
denominator of which is the sum of all 
qualifying deposits. 

Within each subcategory, a formula to 
be used in the event of an 
oversubscription for the equitable 
allocation of shares of stock within such 
subcategory which relates to an eligible 
accountholder's qualifying deposit 
balance. 



For the purposes of this Paragraph, a 
converting institution shall define its 
"market area" to include each county in 
which it has an office and may include 
such additional counties contiguous to 
those counties in which it maintains an 
office (regardless of whether such 
counties are in the State of North 
Carolina) as it may designate to be part 
of its "market area" in its plan of 



conversion. 



Statutory Authority G.S. 54C-33: 54C-53. 

TITLE 11 - DEPARTMENT OF 
INSURANCE 

iSotice is hereby given in accordance with G.S. 



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PROPOSED RULES 



150B-21.2 that the N.C. Medical Database Com- 
mission intends to adopt rule cited as 1 1 NCAC 15 
.0011. 

1 he proposed effective date of this action is 
September 1, 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A request for a public hearing must be 
made in writing, addressed to Ellen K. Sprenkel, 
N. C. Department of Insurance, P. O. Box 26387, 
Raleigh, N.C. 27611. This request must be re- 
ceived within 15 days of this notice. 

MVeason for Proposed Action: To establish fees 
for the distribution of data as required by statute. 

{comment Procedures: Written comments may be 
sent to Jim Hazelrigs, Medical Database Commis- 
sion, 112 Cox Avenue, Raleigh, N.C. 27605. 
Anyone having questions should callJim Hazelrigs 
at (919) 733-7141, or Ellen Sprenkel at (919) 
733-4529. 

CHAPTER 15 - MEDICAL DATABASE 
COMMISSION 

,0011 FEES AND CHARGES FOR DATA 

(a) The fees for the following reports generated 
by the Commission are as follows: 

$ 15 State and County Profiles of 

Hospital Inpatient Utilization 

5 30 DRG Utilization and Charges by 

Hospital: A Reference Book 

$ 15 A Summary Guide to Hospital 

Utilization and Charges 

$ 10 Primary Payer Summary Statistics 

by Hospital 

$ 20 Patient Origin Report 

$ 20 Hospital Inpatient Surgical Proce- 

dures Report 

$100 Complete set of the six reports 

named in this Paragraph 

(h) The fees for the following personal computer 
(PC) products generated by the Commission are as 
follows: 

$375 PCIA: Diskette File of DRG 

Utilization and Charges by Hospi- 



$750 

$375 



tal 

PCIB: Diskette File of DRG 
Utilization and Charges by Hospi- 
tal by Payer Category 
PC2: Diskette File of Zip Code 
Patient Origin by Hospital 



(c) Special data requests may be performed by 
commission staff based upon specifications devel- 
oped for each project. The charges for special 
data requests are as follows: 

(1) The full costs charged to the Commis- 
sion by others involved in completing 
the request: 

(A) data processing contractor or the State 
Data Center; 

(B) any consultant or other contractor 
involved in the process. 

(2) Twenty-five dollars ($25.00) per hour 
time of a research analyst or other 
member of the Commission staff work- 
ing on the project. 

(3) A charge for the use of the medium on 
which the product will be delivered, 
paper at ten cents ($0. 10) per page, 
diskettes at two dollars ($2.00) each, 
and tape at the current cost to the Com- 



mission. 
(4) A charge for the cost of delivering the 
product to the requestor: 

(A) Business envelopes at ten cents 
($0.10) each. 8^ x 1 1 " envelopes at 
seventy-five cents ($0.75) each, and 
boxes for mail of bulk materials at 
two dollars ($2.00) each. 

(B) U.S. Postal Service actual postage 
charges. 

(C) Express type mail services may be 
used, provided the Commission 
obtains the account number of the 
requestor and charges the special 
delivery to the requestor's account. 
The Commission will not include this 
as part of the invoice for the product. 

(d) Materials may be transmitted via facsimile 
for one dollar ($1 .00) per page for faxing with a 
minimum fax charge of ten dollars ($10.(X)). This 
includes faxing to a long distance number in the 
continental United States . Faxing to Alaska. 
Hawaii, U.S. territories, and foreign countries 
shall not be done by the Commission. The 
Commission will not fax more than 30 pages of 
data. 

(e) The Commission shall charge twenty-five 
dollars ($25. (X)) for the standard mailing list and 



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464 



PROPOSED RULES 



thirty dollars ($30.00) if the mailing list is 
formatted to other than standard format at the 
request of the purchaser of the list. 

(f) The Commission shall charge the proper 
sales tax on all materials sold under this Rule. 

Statutory Authority G.S. 131E-211(k): 
131E-212(b)(7). 

TITLE 15 - DEPARTMENT OF 

ENVIRONMENT, HEALTH. AND 

NATURAL RESOURCES 

I\otice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Environment, 
Health, and Natural Resources intends to amend 
rule cited as 15A NCAC IK .0402. 

1 he proposed effective date of this action is 
October 1. 1993. 

1 he public hearing will be conducted at 7:00 
p.m. on July 7, 1993 at the Ground Floor Confer- 
ence Room. Archdale Building, 512 N. Salisbury 
Street. Raleigh, NC. 

IXeason for Proposed Action: The Groundwater 
Section has found that less financially capable 
owners of commercial underground storage tanks 
are having great difficulty obtaining loans to 
upgrade and replace tanks under the existing rules. 
These commercial tank owners are unable to afford 
loans under the current interest and term require- 
ments of 15A NCAC IK .0402. Underground 
storage tanks owned by these individuals account 
for a large percentage of the groundwater contami- 
nation in the State. These upgrades/replacements 
of tanh: are required under Federal and State 
technical standards found in 15A NCAC 2N. To 
improve access to the Groundwater Protection 
Loan Fund for less financially capable owners, the 
proposed amendment to 15A NCAC IK .0402 
reduces the fixed interest rate from the New York 
Prime Interest Rate plus three to the Nevt' York 
Prime Interest Rate on the day of application. The 
term of loans is also extended from 120 months to 
180 months. 

K^omment Procedures: Submit written conunents 
by July 16, 1993 to: Mr. Gary Shaver, DEM- 
Groundwater Section, 441 N. Harrington Street, 



Raleigh, NC 27603. Oral comments may be made 
at the public hearing. 

tLditor's Note: This Rule was filed as a tempo- 
rary rule effective June 1, 1993 for a period of 
180 days or until the permanent rule becomes 
effective, whichever is sooner. 

CHAPTER I - DEPARTMENTAL RULES 

SUBCHAPTER IK - GROUNDWATER 
PROTECTION LOAN FUND 

SECTION .0400 - LOAN CONDITIONS 

.0402 INTEREST AND TERM 

(a) All loans made in accordance with this 
Subchapter shall use a variabl e fixed interest rate. 
The interest rate shall be the New York Prime 
Rate, as reported in the Wall Street Journal, pk» 
thr ee p e rc e nt, on the day of application. This rate 
includes the loan fees specified in Paragraphs (d) 
and (e) of Rule .0401 of this Subchapter. 

(b) The term of each loan shall not exceed 4-30 
180 months. 

Statutory Authority G.S. 143-21 5. 94P. 

iS otice is hereby given in accordance with G.S. 
150B-21. 2 that the EHNR - Commission for Health 
Services intends to amend rules cited as 15A 
NCAC 19B .0301, .0304, .0309 and repeal rules 
cited as 15A NCAC 19B .0316 - .0317. 

1 he proposed effective date of this action is 
October 1, 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on July 14, 1993 at the Highway Building, 
First Floor Auditorium, 1 South Wilmington Street, 
Raleigh, North Carolina. 



iVeason for Proposed Action: 

15A NCAC 19B .0301. .0304 and .0309 - to 

change the name of the Chemical Tests for Alcohol 

Branch to the Forensic Tests for Alcohol Branch. 

nis change is due to the new infrared technology 

being used rather than chemicals used with the 

breathalyzer. 



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PROPOSED RULES 



15A NCAC 19B .0316 and .0317 - to update 
approved instruments. The Breathalyzer, Model 
2000 is no longer in use or being manufactured. 

K^omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or proposed changes 
from staff pursuant to comments made during the 
public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS. INSTITUTIONS OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO The Commission FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND COMMENT 
PROCESS, WHETHER THEY SUPPORT OR OPPOSE 
ANY OR ALL PROVISIONS OF THE PROPOSED 
RULES. The Commission MAY MAKE CHANGES TO 
THE RULES AT ne Commission MEETING IF THE 
CHANGES COMPLY WITH G.S. I50B-2I.2(f). 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19B - INJURY CONTROL 

SECTION .0300 - BREATH ALCOHOL 
TEST REGULATIONS 

.0301 APPLICATION FOR INITIAL 
PERMIT 

(a) Application for an initial permit to perform 
chemical analysis of a person's breath to determine 
his alcohol concentration shall be made in writing 
to the Director. The applicant shall have the 
endorsement of his appropriate supervising law 
enforcement officer, or his designated representa- 
tive, unless an exception is granted by the Direc- 
tor. The Director shall issue, deny, terminate, and 
revoke permits for individuals to perform chemical 
analyses. 

(b) Permits shall be granted to individuals who: 



(1) demonstrate the ability to perform 
chemical analyses accurately and reli- 
ably in accordance with a method or 
methods approved by the Commission; 

(2) can satisfactorily explain the method of 
operation of the breath-testing instru- 
ment for which he is applying for a 
permit to operate; 

(3) offer satisfactory proof of good charac- 
ter to the Director; and 

(4) are employed by a law enforcement 
agency, the Injury Control Section or 
members of its instructional staff, or by 
some other federal, state, county or 
municipal agency with the responsibility 
of administering chemical analyses to 
drivers charged with implied consent 
offenses. 

(c) Individuals successfully completing a mini- 
mum number of course hours on chemical forensic 
tests for alcohol conducted by the Injury Control 
Section shall be deemed to have met the require- 
ments of (b) (1) and (2) of this Rule. 

Statutory Authority G.S. 20-1 39. 1(b). 

.0304 CONDITIONS FOR RENEWAL OF 
PERMIT 

(a) Permits shall be subject to renewal at expira- 
tion, or at such time prior to expiration as is 
convenient for the Director, upon demonstration 
by the permittee of: 

(1) continuing ability to perform accurate 
and reliable chemical analyses; 

(2) ability to satisfactorily explain the 
method of operation of the 
breath-testing instrument for which he 
is applying for a renewal permit to 
operate; 

(3) continued employment by a law 
enforcement agency, the Injury Control 
Section or a member of its instructional 
staff, or by some other federal, state, 
county or municipal agency with the 
responsibility of administering chemical 
analyses to drivers charged with 
implied consent offenses; and 

(4) proof of good character, if desired by 
the Director. 

(b) Individuals successfully completing a 
chemical forensic test for alcohol recertification 
course conducted by the Injury Control Section 
shall be deemed to have met the requirements of 
(a) (1) and (2) of this Rule for the first and 
subsequent renewal of permits. 



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466 



PROPOSED RULES 



(c) Individuals desiring first and subsequent 
renewal permits, after expiration of their permits, 
shall successftilly complete the following Injury 
Control Section course requirements prior to the 
granting of renewal permits, unless an exception is 
granted by the Director: 

( 1 ) Chemical Forensic Tests for Alcohol 
Recertification Course if the permit has 
been expired less than six months; 

(2) Chemical Forensic Tests for Alcohol 
Operators Course if the permit has been 
expired six months or longer. 

Statutory Authorin- G.S. 20-1 39. 1(b). 

.0309 QUALIFICATIONS OF 

MAINTENANCE PERSOIVNEL 

(a) Preventive maintenance on all breath -testing 
instruments shall be performed by a chemical 
analyst who has successfully completed the 
chemical forensic tests for alcohol technical 
supervisor's school or a maintenance course for a 
specific instrument, as conducted by the Injury 
Control Section, unless an exception is granted by 
the Director. 

("b) Chemical analysts qualifying under this Rule 
shall be granted certificates by the Director 
authorizing the performance of preventive 
maintenance on specific models of breath-testing 
instruments. 

(1) Certificates shall be granted for an 
indefinite period but shall be valid only 
during the period that the chemical 
analyst possesses a current valid permit 
to perform chemical analyses of the 
breath on the specific models of 
breath-testing instruments for which 
preventive maintenance is being 
performed. 

(2) Certificates shall be subject to 
revocation under the same provisions 
specified under Rule .0308 of this 
Section for revocation of permits to 
perform chemical analyses. 

(3) The Director shall have the same 
e\'aluation authority over holders of 
certificates as he possesses over 
permittees under Rule .0307 of this 
Section. 

Statutory Authorit}- G.S. 20-1 39. 1(h). 

.0316 BREATHALYZER: MODEL 2000 

The operational procedures to bo followed in 
using the Breathalyzer. Model 2000 are: 



i-y) Insure obgcrvation period requirements 

have been met; 
(3) Wbefl — "INSERT TICKET" — appears. 



(^ 



insert test record; 
When "READY" 



appears, push 



W- 



" START/TEST"; 

Insure alcoholic breath 



simulator 



shows — proper — operating 



thermometer 

tcmpKjraturc; 
(5) Wbefl — "BLOW — SAMPLE" — appears, 

connect alcoholic breath simulator and 

push "START/TEST"; 
i€) Wfeefl "ANALYZING" appears. 

disconnect alcoholic breath simulator; 
t?3 Wfeefl "ANALYSIS COMPLETE" 

appears. — insure — instrument — displays 



expxKJted results; 



i^ 



m- 



When — "BLOW — SAMPLE" — appears. 

collect breath sample; 

When — "BLOW — SAMPLE" — appears. 

collect breath s ample; 
{iQj Wfeefl "ANALYSIS COMPLETE" 

app>cars. remove test record and record 

time s and result s . 
If the alcohol concentrations differ by more than 
0.02, — a — third — er — subsequent — test — sheH — be 
administered as soon as feasible by repeating steps 
(1) through (10). 

Statutory Authorit}- G.S. 20-1 39. 1(b). 

.0317 PREVENTIVE MAINTENANCE: 
BREATHALYZER: MODEL 2000 

The preventive maintenance procedures for the 
Breathalyzer. Model 2000 to be followed at least 
once during every 30 days arc: 

{4^ When — instrument — displays — "INSERT 

TICKET", in s ert test record; 

■(3) Verify' alcoholic breath simulator 



thermometer — s how 
temperature; 



s — proper — operating 






-WiK 



'READY' 



appc 



"START/TEST" 



When — "BLOW — SAMPLE" — appears 
collect breath s ample; 



When — "BLOW — SAMPLE" — appears, 
connect alcoholic breath simulator and 
push "START/TEST", disconnect when 
"ANALYZE" appears; 

m Whefl — "BLOW SAMPLE" — appears, 

connect alcoholic breath simulator and 
push "START/TEST", disconnect when 
"ANALYZE" appears; 
Wh e n "ANALYSIS COMPLETE" 



t^ 



apfXiars, remove test record and record 



467 



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PROPOSED RULES 



s imulator results; 

^8) Verify alcoholic breath simulator s olution 

i s being changed evcr>' 15 days or after 
25 tests, whichever occurs first. 
A signed original of the preventive maintenance 
checklist shall be kept on file for at least three 
years. 

Statutory Authority G.S. 20-1 39. 1(b). 

ISotice is hereby given in accordance with G.S. 
1508-21. 2 that the EHNR - Commission for Health 
Services intends to amend rule cited as 15A NCAC 
21 D .0401. 



1 he proposed effective date of this action L 
October 1. 1993. 



IS 



1 he public hearing will be conducted at 1:30 
p.m. on July 14, 1993 at the Highway Building, 
First Floor Auditorium, 1 South Wilmington Street , 
Raleigh, North Carolina. 

iXeason for Proposed Action: To allow the WIC 
Program to serve more of the eligible WIC popula- 
tion. This change will require all local WIC 
agencies to use the full federal income eligibility 
limit. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or proposed changes 
from staff pursuant to comments made during the 
public hearing process. 

IT IS VERY IMPORTANT THAT ALL 



INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS. WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MA Y MAKE CHANGES TO THE 
R ULES A T THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 15OB-21.20. 

CHAPTER 21 - HEALTH: 
PERSONAL HEALTH 

SUBCHAPTER 21D - 
WIC/NUTRITION 

SECTION .0400 - ELIGIBILITY FOR WIC 
PROGRAM PARTICIPATION 

.0401 ELIGIBILITY 

(a) In order to be eligible for WIC program 
benefits, a person must be: 

(1) a pregnant, postpartum or breastfeeding 
woman, an infant, or a child up to 
his-her fifth birthday; 

(2) a resident of the health service delivery 
area of the local WIC agency; 

(3) income eligible as provided in the local 
WIC program plan , that is, her gross 
family income shall be equal to or less 
than 185% of the poverty income 
guidelines issued annually by the U.S. 
Department of Health and Human 
Services ; 

(4) certified at nutritional risk according to 
the certification criteria referenced in 
Rule .0404 of this Section. 

(b) An individual shall be certified as eligible to 
receive WIC program benefits when their her 
eligibility has been determined and documented by 
the local WIC agency. 

(c) The certification of nutritional risk shall be 
made through a medical and nutritional 
assessment, as provided in Rule .0403 of this 
Section made by a competent health professional 
employed or designated by the local WIC agency. 

Authority' G.S. 130A-361; 7 C.F.R. 246. 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



468 



PROPOSED RULES 



I\otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rule cited as 15A NCAC 
21 F .0102. 

1 he proposed effective date of this action is 
October 1. 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on July 14, 1993 at the Highway Building, 
First Floor Auditorium, 1 South Wilmington Street, 
Raleigh, North Carolina. 

iVeason for Proposed Action: To include a 
definition of low income in the Children 's Special 
Health Services Program. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or proposed changes 
from staff pursuant to comments made during the 
public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS. INSTITUTIONS OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS. WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
150B-2L2(f). 

CHAPTER 21 - HEALTH: PERSONAL 
HEALTH 



SUBCHAPTER 21F - CHH^DREN'S 

SPECIAL HEALTH SERVICES: CHILDREN 

AND YOUTH SECTION 

SECTION .0100 - GENERAL PROVISIONS 

.0102 DEFINITIONS 

The following definitions shall apply throughout 
this Subchapter: 

(1) "Appliances and equipment" means 
wheelchairs, braces, hearing aids, 
prostheses, respiratory aids, and similar 
items authorized for program patients. 

(2) "Augmentative communication aids" are 
individually prescribed devices designed 
to facilitate communication for 
non-verbal individuals. TTiese include, 
but are not limited to communication 
boards, scanning devices, strip printers, 
etc. 

(3) "Authorization or authorized service" 
means a request for service which has 
been approved by Children's Special 
Health Services. Authorization is 
indicated by the signature of the program 
director or his designee on an application 
for cost service. 

(4) "Cost service" means any service which 
requires submission of an application for 
approval and payment. These services 
include: 

(a) medical or surgical care in a hospital or 
clinic; 

(b) consultation; 

(c) appliances and equipment; 

(d) medication (see Rule .0408 of this 
Subchapter); 

(e) physical therapy; 

(f) occupational therapy; 

(g) speech-language pathology and 
audiology services; 

(h) dental care limited to that specified in 

Rule .0406 of this Subchapter; 
(i) physicians' fees; 
(j) x-rays and laboratory tests; 
(k) psychological services. 

(5) "Date of service" is the date that the 
approved authorization is to become 
effective. 

(6) "Encumbrance or encumbered money" is 
the money obligated to pay for services 
authorized by the Children's Special 
Health Services. 

(7) "Expendable supplies" designates those 
appliances and equipment that are not 



469 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



PROPOSED RULES 



recyclable, such as disposable gauze 
sponges, bandages, detergents and similar 
items. 

(8) "Extension of hospital stay" is an 
approved additional number of days of 
hospitalization beyond those initially 
authorized. 

(9) "Extension of validity" is an approved 
change of the period of validity during 
which an authorization for hospitalization 
or outpatient surgery is in effect. 

(10) "Inpatient" is a person who is admitted to 
the hospital as a bed patient on a hospital 
ward. 

(11) "Low Income" means an individual or 
family with an income determined to be 
below the nonfarm income official 
poverty line defined by the Office of 
Management and Budget and revised 
annually in accordance with Section 624 
of the Economic Opportunity Act of 
1964. 

•(44) (12) "Medical or surgical emergency" is 
a situation arising from any disease, 
defect or condition normally supported by 
Children's Special Health Services which 
may be life-threatening, or in which 
delay of prompt remedial medical care 
would be detrimental to the future health 
and well-being of the child. 

{i^ (13) "Non-sponsored clinic" is a clinic 
which serves individuals with Children's 
Special Health Services supported medi- 
cal conditions but which is not recog- 
nized, supported and listed as an official 
Children's Special Health Services clinic. 

<4-^ (14) "Outpatient" is an individual who 
receives care without inpatient hospital 
admission. This includes care provided 
in emergency rooms, clinics, and 
physicians' offices, or in other hospital 
settings, including outpatient surgery. 

(44) 115] "Period of validity" is the 30 days 
following the date approved for 
admission during which hospitalization 
for inpatient care or outpatient surgery 
may begin. 

{iSj (16) "Rostered orthodontist and 

prosthodontist" are specialists who meet 
the stipulations set forth in Section .0700 
of this Subchapter and who have made 
application to and been approved by 
Children's Special Health Services to 
request authorizations and provide 
services for eligible children. 



(44) (17) "Rostered physician" is a medical 
specialist who meets the stipulations set 
forth in Section .0700 of this Subchapter 
and who has made application to and 
been approved by Children's Special 
Health Services to request authorizations 
and provide services for eligible children. 

(+7) (18) "Rostered speech and language 
pathologist" is a specialist who meets the 
stipulations set forth in Section .0700 of 
this Subchapter and has made application 
to and been approved by Children's 
Special Health Services to request 
authorizations and provide services for 
eligible children. 

(+8) (19) "Rostered audiologist" is a 
specialist who meets the stipulations set 
forth in Section .0700 of this Subchapter 
and has made application to and been 
approved by Children's Special Health 
Services to request authorizations and 
provide services for eligible children. 

(+9) (20) "Sponsored clinic" is a clinic that is 
recognized, supported, and listed as an 
official Children's Special Health 
Services. 

Statutory Authority G.S. 130 A- 124. 

TITLE 16 - DEPARTMENT OF 
PUBLIC EDUCATION 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Education 
intends to amend rules cited as 16 NCAC 6C . 0312 
and .0401 - .0403. 

1 he proposed effective date of this action is 
September 1, 1993. 

The public hearing for 16 NCAC 6C .0312 will 
be conducted at 9:30 a. m. and 16 NCA C 6C . 0401 
- .0403 will be conducted at 10:30 a.m. on July 2, 
1993 at the State Board Room, 7th Floor, Educa- 
tion Bldg. , 301 N. Wilmington Street, Raleigh, NC 
27601-2825. 



ixeason for Proposed Action: 

16 NCAC 6C .0312 - Amendment requires school 

administrators to report sexual or physical abuse 

of children by teachers to the State Board. 

16 NCAC 6C . 0401 - . 0403 - Amendments provide 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



470 



PROPOSED RULES 



greater flexibility in earning and use of leave and 
make technical corrections. 

i^omment Procedures: Any interested person may 
submit views either in writing by July 15, 1993 or 
orally at the hearing. 

CHAPTER 6 ELEMENTARY AND 
SECONDARY EDUCATION 

SUBCHAPTER 6C - PERSONNEL 

SECTION .0300 - CERTIFICATION 

.0312 CERTIFICATE SUSPENSION AND 
REVOCATION 

(a) The SBE may deny an application for certifi- 
cation or may suspend or revoke a certificate 
issued by the Department only for the following 
reasons: 

(1) fraud, material misrepresentation or 
concealment in the application for 
certification; 

(2) changes in or corrections of the certifi- 
cate documentation which makes the 
individual ineligible to hold a certifi- 
cate; 

(3) conviction or entry of a plea of no 
contest, as an adult, of a crime if there 
is a reasonable and adverse relationship 
between the underlying crime and the 
continuing ability of the person to 
perform any of his/her professional 
functions in an effective manner; 

(4) final dismissal of a person by a local 
board pursuant to G.S. 
115C-325(e)(l)b., if there is a 
reasonable and adverse relationship 
between the underlying misconduct and 
the continuing ability of the person to 
perform any of his/her professional 
functions effectively; 

(5) final dismissal of a person by a LEA 
under G.S. 1 15C-325(e)(l)e.; 

(6) resignation from employment with a 
LEA without 30 work days' notice, 
except with the prior consent of the 
local superintendent; 

(7) revocation of a certificate by another 
state; aad 

(8) any other illegal or immoral conduct by 
a person, if there is a reasonable and 
adverse relationship between the 
underlying conduct and the continuing 



ability of the person to perform any of 
his/her professional functions in an 
effective manner^ and 
{9} Failure to report revocable conduct as 
required under Paragraph (b) of this 
Rule. 

(b) Any superintendent, assistant superintendent, 
associate superintendent, personnel administrator 
or principal who knows or has substantial reason 
to believe that a certified employee of the LEA has 
engaged in behavior that would justify revocation 
of the employee's certificate under Subparagraphs 
(3), (4) or (8] of Paragraph (a) of this Rule and 
which behavior involves physical or sexual abuse 
of a child shall report that information to the 
Superintendent of Public Instruction. For purposes 
of this Section, the term "physical abuse" means 
the infliction of serious physical injury other than 
by accidental means and other than in self-defense. 
The term "sexual abuse" means the commission of 
any sexual act upon a student or causing a student 
to commit a sexual act, regardless of the age of the 
student and regardless of the presence or absence 
of consent. 

(c) ^ Upon the receipt of a written request and 
substantiating information from any LEA, local 
superintendent or other person in a position to 
present information as a basis for the suspension or 
revocation of a person's certificate, the Superinten- 
dent of Public Instruction will conduct an investi- 
gation sufficient to determine whether reasonable 
cause exists to believe that the person's certificate 
should be suspended or revoked. 

(1) If the Superintendent determines that 
reasonable cause exists to believe that 
the person's certificate should be sus- 
pended or revoked on one or more of 
the grounds specified in Paragraph (a) 
of this Rule, the Superintendent shall 
prepare and file written charges with 
the SBE. 

(2) The SBE will review the written charg- 
es and determine whether the person's 
certificate should be suspended or 
revoked based on the information con- 
tained in the written charges. If the 
SBE determines that the written charges 
constitute grounds for suspension or 
revocation, it shall provide the person 
with a copy of the written charges, and 
notify the person that it will revoke the 
person's certificate unless the person, 
within 60 days of receipt of notice, 
initiates administrative proceedings 
under Article 3. Chapter 150B of the 



471 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



PROPOSED RULES 



Genera] Statutes. The notice will be 
sent certified mail, return receipt re- 
quested . 
(3) If the person initiates administrative 
proceedings the SBE will defer final 
action on the matter until receipt of a 
proposed decision as provided for in 
G.S. 150B-34. If the person does not 
initiate administrative proceedings 
within 30 days of receipt of notice, the 
SBE may suspend or revoke the 
person's certificate at its next meeting. 

(d) fe) Tlie SBE may suspend an individual's 
certificate for a stated period of time or may 
permanently revoke the certificate, except as 
limited by G.S. lI5C-325(o). 

(e) {d) The SBE may reinstate a suspended or 
revoked certificate or may grant a new certificate 
upon application and a showing of good cause by 
the individual. The burden of proving good cause 
is on the applicant. 

Ifi (e) The SBE will notify all other states of all 
actions which involve the suspension, revocation 
or reinstatement of a certificate. 

(g) ff) The SBE will consider requests for 
reinstatement of revoked certificates. The SBE 
will not grant any request for reinstatement unless 
it finds as facts that: 

(1) the action that resulted in revocation 
did not involve abuse of minors; 
possession, sale or use of controlled 
substances; moral turpitude or grounds 
listed in G.S. 1 15C-325(e)(l)b. or e.; 

(2) the person has no record of subsequent 
behavior that could have resulted in 
certificate revocation; 

(3) there is no court order or judicial 
determination that would prohibit the 
person from returning to a certificated 
position; and 

(4) there has been a sufficient lapse of time 
since revocation for the person to 
appreciate the value of certification. 

Authority G.S. 115C-12(9)a.; N.C. Constitution, 
Article IX, Sec. 5. 



SECTION .0400 - LEAVE 

.0401 VACATION LEAVE 

(a) All full-time or part-time permanent public school employees who are working or on paid leave for at 
least one-half of the calendar days in a month earn vacation leave, based on length of state service in North 
Carolina. 

(b) A part-time permanent employee in a budgeted position earns vacation leave on a pro rata basis. 



8:6 NORTH CAROLINA REGISTER June 15, 1993 472 



PROPOSED RULES 



(c) Local boards of education may choose to record leave earned in hours. If leave is recorded in hours, 
the leave earned as indicated jn this Paragraph will be multiplied times the regular number of hours worked 
per day. Employees earn vacation leave as follows; 



Years of 




Day 


s Per Month 


State Service 




of 


Employment 


Less than 2 yrs. 






1.00 


2 but less than 5 


yrs. 




1.15 


5 but less than 10 yrs. 




1.40 


10 but less than 


15 yrs. 




1.65 


15 but less than 


20 yrs. 




1.90 


20 yrs. or more 






2.15 



(d) LEAs credit state service for full-time or part-time permanent employment figured on the same basis 
as for longevity pay. The LEA must establish the anniversary date for each employee on the basis of the 
employee's state service. 

(e) The LEA may advance vacation leave to an employee. 

(f) The LEA transfers unused vacation leave when an employee transfers between LEAs. An employee may 
have leave transferred to or from a state agency or institution, community college or technical institute, a 
position subject to the State Personnel Act in a local mental health, public health, social services or emergency 
management agency, if the receiving agency is willing to accept the leave; otherwise, the employee will be 
paid in a lump sum for accumulated leave not to exceed 30 workdays or 240 hours, according to the earning 
rate. 

(g) Leave payment at separation is subject to the following: 

(1) An employee who is overdrawn on leave when he or she separates will have the excess leave 
corrected through a deduction from the final salary check. 

(2) Payment for leave may be made on the regular payroll or on a supplemental payroll. The LEA 
makes payment from the same source of funds and in the same proportion as the employee's salary 
is paid. 

(3) Terminal leave payment is subject to the same deductions as salary, including retirement. 

(4) The receipt of lump sum leave payment and retirement benefit is not dual compensation. 

(5) The LEA makes payment for unpaid salary, terminal leave and travel of a deceased employee to 
the personal representative of the deceased employee, or if there is no personal representative, to 
the Clerk of Superior Court of the county in which the employee resided. 

(h) Each LEA shall maintain leave records for all employees. LEAs must inform employees of their leave 
balances at least once a year. LEAs must retain leave records for separated employees for at least five years 
from the date of separation. 

(i) Leave must be taken in one-half days, whole days, or hours as determined for earning purposes by the 
local board minimum unit s of one half or whole days . 

(j) Instructional personnel and school bus drivers may not take vacation leave on days when students are 
scheduled to be in attendance. These persons may take vacation leave instead of sick leave on days when 
students are not scheduled to attend. LEAs may designate specific scheduled workdays for required attendance 
as long as employees have an opportunity to take annual leave earned during the school year. Employees may 
charge leave taken only to scheduled teacher workdays and the ten vacation leave days scheduled in the school 
calendar. 

(k) Other employees may take vacation leave instead of sick leave. These employees must have an 
opportunity to take annual leave earned in the school year. 

Statutory Authority G.S. U5C-272: 115C-285; 115C-302; U5C-316. 

.0402 SICK LEAVE worked daily by a full-time employee in that class 

(a) Public school employees who earn vacation of work. Part-time employees earn and may use 

leave also earn sick leave. Full-time employees sick leave in proportion to the part of the day for 

earn one day per month or the number of hours which they are employed. 



473 8:6 NORTH CAROLINA REGISTER June 15, 1993 



PROPOSED RULES 



(h) The LEA may allow sick leave to be used 
for temporary disability which prevents an employ- 
ee from performing his or her usual duties, illness 
in the employee's immediate family and attendant 
medical appointments which require the 
employee's attendance, death in the immediate 
family and medical appointments for the employee. 
The immediate family includes spouse, children, 
parents (including the step relationship) and 
dependents living in the household, except that in 
the case of death, the term does not include 
dependents but does include siblings, grandparents, 
grandchildren, and the step, half and in-law 
relationships. 

(c) Employees must take leave in one-half days, 
whole days, or hours as determined for earning 
purposes by the local board minimum — units 
one half or whole workdays . 

(d) Employees may accumulate sick leave 
indefinitely and may transfer sick leave as in the 
case of vacation leave. 

(e) LEAs may advance sick leave not to exceed 
the amount which would be earned within the 
school year. 

(f) An employee who is overdrawn on sick leave 
when the employee separates from service will 
have the excess leave corrected through a 
deduction from the final salary check. 

(g) If the period of sick leave taken is less than 
30 days, the employee will return to his or her 
position with the LEA. If the period of temporary 
disability exceeds 30 days, the superintendent shall 
determine when the employee is to be reinstated. 
The superintendent makes this decision based on 
the welfare of the students and the need for 
continuity of instruction. 

(h) The LEA shall credit an employee who 
separates from service and returns within 60 
months with all sick leave accumulated to the time 
of separation. 

(i) Permanent full or part-time instructional 
personnel, excluding teacher assistants, who are 
absent due to their personal illness or injury in 
excess of their accumulated sick leave, shall be 
allowed extended sick leave of ug to 20 work days 
throughout the regular term of employment. 
These days do not have to be consecutive. Anew 
employee must have reported to work to be 
eligible for extended sick leave. The 

superintendent may require a doctor's certificate or 
other acceptable proof of the reason for the 
absence. Up>on exhaustion of sick leave, including 
the extended 20 days or optionally used vacat i on 
leave, a s permi ss ible, the employee shall be placed 
on leave without pay for a period of up to on e 



year or the end of the contracted period of employ 
mcnt, whichever is s horter. TTiis may be extended 
beyond these times limits as approved by the local 
board. 

Statutory Authority G.S. 115C-12(8); 115C-336. 

.0403 SUBSTITUTES 

(a) LEAs shall employ all substitutes deemed 
necessary for the efficient operation of the unit. 
The superintendent determines the need to employ 
a substitute for a non-teaching assistant principal, 
principal or supervisor. 

(b) The period of substitution is short term if it 
includes 5 or less consecutive day s in the same 

position. Periods in exce s s of five days arc 

long term. 

(b) {s) LEAs employ substitute teachers in units 
of half or whole days. The — tEA — treats 
responsibilities which require less than half a day 
as a half day of employment. 

(c) {^ The LEA pays substitutes as follows: 

(1) A person who substitutes for a 
non-teaching assistant principal, 
principal or supervisor is paid from 
local funds. 

(2) Unless required to be otherwise, a 
substitute for the regular teacher is paid 
from the same source of funds as the 
regular teacher is paid. 

(d) fe) Absences not covered in Rule .0404 
require the appropriate amount of substitute 
teacher pay to be deducted from the regular 
teacher's salary. These absences include extended 
sick leave as explained in Paragraph (f) of this 
Rule, personal leave and in-state meetings of no 
longer than 3 days or out-of-state meetings of no 
longer than 5 days, and not to exceed a total of 10 
days within the school year, for professional 
responsibilities and attendance at professional 
meetings. The superintendent must approve these 
absences. The time limitations of this Rule do not 
apply to a person who is the local or district 
president or president-elect or a state or national 
officer of an educational professional organization, 
or to a person selected as National Teacher of the 
Year from this state. 

(f) — A teacher may be absent due to personal 
illne ss for up to 20 teaching days in excess of 
accumulated s ick leave. — The superintendent may 
require a doctor's certificate or other acceptable 
proof of the reason for the absence. 

(e) fg) Teachers earn personal leave at the rate 
of one-half day for every two and one-half months 
.20 days for full month of employment and may 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



474 



PROPOSED RULES 



accumulate five personal leave days. Teachers 
may transfer these days between LEAs. A teacher 
who requests personal leave at least five days in 
advance of the date desired is not required to give 
a reason for the leave. No teacher may take 
personal leave on the first day teachers are re- 
quired to report for the school year, required 
teacher workdays, the day before or the day after 
holidays or scheduled vacation days, except as 
approved by the principal. The LEA shall credit 
a teacher who has separated from service and is 
re-employed within 60 months from the date of 
separation with all personal leave, up to the 
five-day maximum, accumulated at the time of 
separation. The LEA may not advance personal 
leave beyond that which a teacher earns. Teachers 
may take personal leave in units of one-half or 
whole days. 

(f) -Oh If the regular teacher vacates a teaching 
position during the school year, that teacher 
receives the regular compensation for the actual 
days employed during the current month, adjusted 
for overdrawn leave or unpaid longevity pay. If 
the LEA employs an interim teacher to fill the 
vacancy until a regular teacher is available, the 
LEA pays the interim teacher as follows: 

(1) For service of no more than 10 
teaching days, the person is paid as a 
substitute. 

(2) For service in excess of 10 teaching 
days, the person is paid on the basis of 
the person's certified salary rating. 
The person may elect to be paid as a 
substitute. 

Statutory Authority G.S. 115C-12 (8) . 



475 8:6 NORTH CAROLINA REGISTER 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 
Environmental Policy Act 

1 NCAC 25 .0213 - Environmental Policy Act Advisory Committee 

Agency Revised Rule 
1 NCAC 25 .0401 - Method of Compliance 

Agency Revised Rule 
1 NCAC 25 .0506 - Review Process 

Agency Revised Rule 
1 NCAC 25 .0603 - Format and Content 

Agency Revised Rule 

AGRICULTURE 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



Plant Industry 

2 NCAC 48A .0206 - The Transportation of Bees 

Agency Revised Rule 
2 NCA C 48A . 0207 - Requirements for Issuance of Permit 

Agenc}' Revised Rule 



RRC Objection 05/19/93 

Obj. Removed 05/19/93 

RRC Objection 05/19/93 

Obj. Removed 05/19/93 



COMMERCE 
Cemetery Commission 

4 NCAC 5B .0103 - Hearings 

Agency Revised Rule 
4 NCAC 5D .0101 - Report 

Agency Revised Rule 
4 NCAC 5D .0201 - Report 

Agency Revised Rule 
4 NCAC 5D .0202 - Delivery 

Agency Revised Rule 

Community Assistance 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



4 NCAC 19L .0913 - Grant Closeouts 

Agenc}' Revised Rule 
4 NCAC 19L .1101 - Reporting 

Agency Revised Rule 
4 NCAC 19L . 1505 - Preliminary Awards 

Agency Revised Rule 
4 NCAC 19L . 1604 - Preliminary Awards 

Agency Revised Rule 

Savings Institutions Division: Savings Institutions Commission 

4 NCAC 16G .0311 - Required Provisions in Plan of Conversion 



RRC 


' Objection 


05/19/93 


Obj. 


Removed 


05/19/93 


RRC 


' Objection 


05/19/93 


Obj. 


Removed 


05/19/93 


RRC 


' Objection 


05/19/93 


Obj. 


Removed 


05/19/93 


RRC Objection 


05/19/93 


Obj. 


Removed 


05/19/93 



RRC Objection 03/18/93 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



476 



RRC OBJECTIONS 



Agency Revised Rule 
Agency Revised Rule 

ENVIRONMENT. HEALTH, AND NATURAL RESOURCES 

Coastal Management 

ISA NCAC 7H . 1205 - Specific Conditions 
Rule Returned to Agency 

Environmental Management 

15A NCAC 2H .1110 - Implementation 
Agency Responded 
Agency Responded 

Laboratory Services 

15A NCAC 20D .0234 - Criteria & Procedures: Decert. /Denial/Downgrading 
Agency Revised Rule 

Radiation Protection 



RRC Objection 
Obj. Removed 



03/18/93 
04/15/93 



RRC Objection 



03/18/93 
04/15/93 



RRC Objection 02/18/93 
Obj. Cont'd 03/18/93 
Obj. Cont'd 05/19/93 



RRC Objection 
Obj. Removed 



03/18/93 
04/15/93 



15A NCAC 11 .0108 - Additional Requirements RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

ISA NCAC 11 .0207 - Issuance of Notice of Registration RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

ISA NCAC 11 .0212 - Modifications: Revocation: Termination of Registrants RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

ISA NCAC II .0214 - Training/Educational Requirements for Equipment Svcs RRC Objection 05/19/93 

Agency' Revised Rule Obj. Removed 05/19/93 

ISA NCAC 11 .0337 - Issuance of Specific Licenses RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

ISA NCAC 11 .0507 - Leak Testing and Source Tagging RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

ISA NCAC 11 . 1215 - Conditions of License RRC Objection 05/19/93 

Agency Revised Rule Obj. Renwved 05/19/93 

HUMAN RESOURCES 



Children's Services 



10 NCAC 41 E .0514 - Child Care & Development: Health 

Agency Revised Rule 
10 NCAC 41 G .0705 - Medical Program 

Agency Revised Rule 
10 NCAC 41 Q .0201 - Personnel 

Agency Responded 

Departmental Rules 



RRC Objection 


04/15/93 


Obj. Removed 


05/19/93 


RRC Objection 


04/15/93 


Obj. Removed 


04/15/93 


RRC Objecticm 


04/15/93 


Obj. Cont'd 


05/19/93 



10 NCAC IM .0002 - Complaints 

Agency Revised Rule 
10 NCAC IM .0003 - Investigation 

Agency Revised Rule 



RRC Objection 04/15/93 

Obj. Removed 04/15/93 

RRC Objection 04/15/93 

Obj. Removed 04/15/93 



477 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



RRC OBJECTIONS 



Facility Services 

10 NCAC 3C .2020 

Agency Revised 
10 NCAC 3C .2021 

Agency Revised 
10 NCAC 3C .2030 

Agenc}' Revised 
10 NCAC 3C .2033 

Agency Revised 
10 NCAC 3H .1150 

Agency Revised 
10 NCAC 3H .1151 

Agency Revised 
10 NCAC 3H .1160 

Agency Revised 
10 NCAC 3H .1163 

Agency Revised 

INSURANCE 
Actuarial Services 



- Definitions 
Rule 

- Physician Reqs /Inpatient Rehabilitation Facilities or Units 
Rule 

- Physical Facility Reqs /Inpatient Rehab Facilities or Units 
Rule 

- Deemed Status /Inpatient Rehabilitation Facilities or Units 
Rule 

- Definitions 
Rule 

- Physician Reqs /Inpatient Rehabilitation Facilities or Units 
Rule 

- Physical Facility Reqs /Inpatient Rehab Facilities or Units 
Rule 

- Deemed Status /Inpatient Rehabilitation Facilities or Units 
Rule 



RRC 


' Objection 


04/15/93 


Obj. 


Removed 


04/15/93 


RRC 


' Objection 


04/15/93 


Obj. 


Removed 


04/15/93 


RRC 


' Objection 


04/15/93 


Obj. 


Renuned 


04/15/93 


RRC 


' Objection 


04/15/93 


Obj. 


Removed 


04/15/93 


RRC 


' Objection 


04/15/93 


Obj. 


Removed 


04/15/93 


RRC 


' Objection 


04/15/93 


Obj. 


Removed 


04/15/93 


RRC 


' Objection 


04/15/93 


Obj. 


Removed 


04/15/93 


RRC 


' Objection 


04/15/93 


Obj. 


Removed 


04/15/93 



11 NCAC 16 .0303 - Annual Filing 
Agency Revised Rule 

Consumer Services 

11 NCAC 4 .0428 - Enforcement 
Agency Revised Rule 
Agency Repealed Rule 

Financial Evaluation Division 

11 NCAC IIB .0607 - Application - Employers 

Agency Revised Rule 
11 NCAC 1 IB .0610 - Application - Groups 

Agency Revised Rule 
11 NCAC IIH .0001 - Definitions 

Agency Revised Rule 

JUSTICE 

Private Protective Services 



RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 



RRC Objection 03/18/93 
RRC Objection 03/18/93 
Obj. Removed 04/15/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/18/93 
04/15/93 
03/18/93 
04/15/93 
05/19/93 
05/19/93 



12 NCAC 7D .0809 - Authorized Firearms 
Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 

Electrolysis Examiners 

21 NCAC 19 .0401 - Infection Control Standards 
Agency Revised Rule 



RRC Objection 04/15/93 
Obj. Removed 05/19/93 



RRC Objection 
Obj. Removed 



05/19/93 
05/19/93 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



478 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5 A .0010 void as applied in Staujfer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
The University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services. Licensure Section, Respondent (92 DHR 1192). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann IIL Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent {92 EHR 0820). 

ISA NCAC 19A .0202(d) (10) - CONTROL MEASLTRES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)( 10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment , 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment , Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief Comtnunicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Bobbitt Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environtnent . Health, and Natural Resources , Respondents (91 EHR 0818). 



479 8:6 NORTH CAROLINA REGISTER June 15, 1993 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 



McLaurin Parking Co. v. Administration 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 



92 DO A 1662 



Morrison 04/02/93 



8:3 NCR 320 



Alcoholic Beverage Control Comm. v. Ann Oldham McDowell 
Curtis Ray Lynch v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Gary Morgan Neugent 
Alcoholic Beverage Control Comm. v. Kirby Ronald Eldridge 
Alcoholic Beverage Control Comm. v. Gloria Black McDuffie 
Alcoholic Beverage Control Comm. v. Larry Isacc Hailslock 
Johnnie L. Baker v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr. 
Alcoholic Bev. Control Comm. v. Mild & Wild, Inc., Sheila Scholz 

COMMERCE 

Lester Moore v. Weatherization Assistance Program 
CRIME CONTROL AND PUBLIC SAFETY 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 0288 


Gray 


05/18/93 


92 ABC 1086 


Becton 


03/22/93 


92 ABC 1153 


Chess 


04/26/93 


92 ABC 1476 


West 


05/26/93 


92 ABC 1483 


Reilly 


04/07/93 


92 ABC 1735 


Chess 


05/07/93 


93 ABC 0125 


Reilly 


05/13/93 


93 ABC 1475 


Nesnow 


03/23/93 



93 COM 0105 Gray 



03/08/93 



George W. Paylor v. Crime Victims Compensation Comm. 
Anthony L. Hart v. Victims Compensation Comm. 
Jennifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Isahelle Hyman v. Crime Victims Compensation Comm. 
James G. Pellom v. Crime Control & Public Safety 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 
Phillip Edward Moore v. Crime Control & Public Safety 
John Willie Leach v. Crime Victims Compensation Comm. 
Constance Brown v. Crime Victims Compensation Comm. 

ENVIRONMENT. HEALTH. AND NATURAL RESOURCES 



91 CPS 1286 


Morgan 


04/27/93 


92 CPS 0937 


Chess 


03/01/93 


92 CPS 1195 


Reilly 


03/19/93 


92 CPS 1787 


Reilly 


03/26/93 


92 CPS 1807 


Morrison 


05/24/93 


93 CPS 0034 


Gray 


05/05/93 


93 CPS 0152 


Nesnow 


04/02/93 


93 CPS 0169 


Nesnow 


05/20/93 


93 CPS 0263 


Morrison 


05/20/93 


93 CPS 0351 


Reilly 


05/24/93 



8:3 NCR 327 



Charles L. Wilson v. Environment, Health. & Natural Resources 
Utley C. Stallings v. Environment, Health, & Natural Resources 
Safeway Removal, Inc. v. Environment, Health, & Natural Res. 
Elizabeth City /Pasquotank Cty Mun Airport Auth v. EHNR 
Service Oil Company v. Environment, Health. & Natural Resources 
City of Salisbury v. Environment, Health, & Natural Resources 
Willie M. Watford v. Hertford Gates District Health Department 
Standard Speciality Contractors, Inc. v. EHNR 
Angela Power. Albert Power v. Children's Special Health Svcs. 
Mustafa E. Essa v. Environment, Health. & Natural Resources 
Roselta Brimage, Vanessa Pack v. Env. Health of Craven County 
Shell Bros. Disl., Inc. v. Environment, Health, & Natural Resources 



91 EHR 0664 


Morgan 


03/23/93 


92 EHR 0062 


Gray 


03/15/93 


92 EHR 0826 


West 


03/12/93 


92 EHR 1140 


Gray 


04/13/93 


92 EHR 1205 


Reilly 


05/27/93 


92 EHR 1472 


Morrison 


04/22/93 


92 EHR 1600 


Chess 


03/24/93 


92 EHR 1660 


Reilly 


05/21/93 


93 EHR 0008 


Becton 


03/24/93 


93 EHR 0146 


Gray 


03/29/93 


93 EHR 0206 


Nesnow 


05/20/93 


93 EHR 0308 


Becton 


05/18/93 



8:1 NCR 83 



HUMAN RESOURCES 



O.C. Williams v. Human Resources 
Ronald Terry Brown v. Human Resources 
O.C. Williams v. Human Resources 



91 CSE0036*- 


Morgan 


03/30/93 


91 CSE0249 


Morgan 


05/17/93 


91 CSE 1158*= 


Morgan 


03/30/93 



Consolidated cases. 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



480 



CONTESTED CASE DECISIONS 



AGENCY 



Michael L. Ray v. Human Resources 

Rand> Chambliss v. Human Resources 

Melvin White v. Human Resources 

Jefferson D. Boylen v. Human Resources 

Jefferv D. Williams v. Human Resources 

Samuel E. Massenberg Jr. v. Human Resources 

William A. Dixon v. Human Resources 

Grcgon, L. Washington v. Human Resources 

Edwin Clarke v. Human Resources 

Dwaync Allen v. Human Resources 

Eduin Ivester v. Human Resources 

Edward E. Brandon \'- Human Resources 

Darrell W, Russell v. Human Resources 

Michelle D. Mohley v. Human Resources 

Robert E. Watson v. Human Resources 

Byron Christopher Williams v. Human Resources 

James W. Bell v. Human Resources 

Eric Stanley Stokes v. Human Resources 

David Rollins v. Human Resources 

Lyndcll Greene v. Human Resources 

Leroy Snuggs v. Human Resources 

James P. Miller HI v. Human Resources 

Larry L. Crowderv. Human Resources 

Carlos Bernard Davis v. Human Resources 

Timothy Brian Eller v. Human Resources 

Charles S. Ferrer v. Human Resources 

Ronald H. Lockley v. Human Resources 

Rene TTiomas Rittenhouse v. Human Resources 

Thomas Edward Williamson v. Human Resources 

Roy Chester Robinson v. Human Resources 

William E. Ingram v. Human Resources 

Harold R. Pledger v. Human Resources 

Dale Robert Sluhre v. Human Resources 

Tommy Malone v. Human Resources 

James C. Dixon Jr. v. Human Resources 

Wallace M. Cooper v. Human Resources 

Jarvis N. Price v. Human Resources 

Thomas L. Yates v. Human Resources 

Robert E. Tarlton Sr. v. Human Resources 

Rodney Devard demons v. Human Resources 

James A. Coleman v. Human Resources 

Romeo F. Skapplev. Human Resources 

Jeffrey L. Garrett v. Human Resources 

William C. Hubbard v. Human Resources 

Edward Filch v. Human Resources 

Brian C. Gilmore \'. Human Resources 

Johnny W. Cooke v. Human Resources 

Isaac Maxwell v. Human Resources 

Donald J, Ray v. Human Resources 

McKinley Clybum \'. Human Resources 

Jeftcrv D. Williams v. Human Resources 

Billy Smith v. Human Resources 

Anthony Curry v. Human Resources 

Larn. W. Golden v. Human Resources 

William J. Carter v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Patrick Floyd v. Human Resources 

James E. Blakney v. Human Resources 

Barbara W. Catlett v. Human Resources 

Laurel Langford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein \'. Human Resources 

Leon Barbee v. Human Resources 

James H. Hunt Jr. v. Div. of Medical Assistance 

Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Snoopy Day Care. Diane Hamby v. Child Day Care Licensing 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



91 CSE 


1173 


Morgan 


05/17/93 




91 CSE 


1187 


Morgan 


04/28/93 




91 CSE 


1192 


Morgan 


05/17/93 




91 CSE 


1217 


Morgan 


05/17/93 




91 CSE 


1231 


Morgan 


04/28/93 




91 CSE 


1249 


Morgan 


05/17/93 




91 CSE 


1277 


Morrison 


03/04/93 




92 CSE 0075 


Morgan 


04/01/93 




92 CSE 0129 


Morgan 


05/17/93 




92 CSE 0196 


Morgan 


03/31/93 




92 CSE 0268 


Nesnow 


03/30/93 




92 CSE 


1237 


Gray 


04/16/93 




92 CSE 


1249 


Becton 


04/20/93 




92 CSE 


1256 


Nesnow 


04/15/93 




92 CSE 


1265 


Reilly 


05/06/93 




92 CSE 


1270 


Nesnow 


04/26/93 




92 CSE 


1311 


Nesnow 


05/10/93 




92 CSE 1316*' 


Reilly 


03/25/93 




92 CSE 


1334 


Morrison 


05/06/93 




92 CSE 


1346 


Nesnow 


04/16/93 




92 CSE 


1360 


Morrison 


04/15/93 




92 CSE 


1361 


Gray 


04/16/93 




92 CSE 


1396 


Reilly 


04/15/93 




92 CSE 


1404 


Reilly 


04/15/93 




92 CSE 


1414 


Reilly 


04/20/93 




92 CSE 


1416 


Mann 


04/15/93 




92 CSE 


1418 


Nesnow 


04/20/93 




92 CSE 


1421 


Nesnow 


04/20/93 




92 CSE 


1422 


Reilly 


04/20/93 




92 CSE 


1423 


Reilly 


04/15/93 




92 CSE 


1450 


Reilly 


04/15/93 




92 CSE 


1455 


Morrison 


05/20/93 




92 CSE 


1516 


Reilly 


05/11/93 




92 CSE 


1520 


Mann 


05/07/93 




92 CSE 


1522 


Becton 


05/11/93 




92 CSE 


1527 


Reilly 


05/11/93 




92 CSE 


1531 


Morrison 


05/12/93 




92 CSE 


1535 


Gray 


05/10/93 




92 CSE 


1536 


Gray 


05/17/93 




92 CSE 


1539 


Gray 


05/10/93 




92 CSE 


1540 


Reilly 


05/11/93 




92 CSE 


1545 


Gray 


04/26/93 




92 CSE 


1557 


Gray 


04/22/93 




92 CSE 


1562 


Mann 


05/12/93 




92 CSE 


1572 


Reilly 


05/11/93 




92 CSE 


1576 


Gray 


04/26/93 




92 CSE 


1585 


Becton 


05/11/93 




92 CSE 


1589 


Reilly 


04/26/93 




92 CSE 


1592 


Mann 


05/19/93 




92 CSE 


1623 


Morrison 


05/20/93 




92 CSE 


1626 


Mann 


05/19/93 




92 CSE 


1629 


Reilly 


03/25/93 




92 CSE 


1631 


Reilly 


03/25/93 




92 CSE 


1633 


Reilly 


03/25/93 




92 CSE 


1637 


Nesnow 


05/19/93 




92 CSE 


1652*' 


Reilly 


03/25/93 




92 CSE 


1663 


Reilly 


05/20/93 




92 CSE 


1779 


Nesnow 


05/13/93 




92 DCS 0577 


West 


03/15/93 




92 DCS 


1181 


Gray 


05/04/93 


8:5 NCR 441 


92 DCS 


1200 


Gray 


03/29/93 




92 DCS 


1271 


Reilly 


05/05/93 




92 DHR 0658 


Morrison 


04/30/93 


8:4 NCR 392 


92DHR 


1145 


Becton 


05/13/93 


8:5 NCR 443 


92 DHR 


1192 


Nesnow 


04/02/93 


8:3 NCR 313 


92 DHR 


1275 


Gray 


03/15/93 




92 DHR 


1320 


Morgan 


05/21/93 





i 



i 



i 



481 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 




DATE OF 


NUMBER 


AL,) 


DECISION 


92 DHR 1329 


Chess 


05/10/93 


92 DHR 1604 


Reilly 


05/10/93 


92 DHR 1612 


Chess 


03/08/93 


92 DHR 1613 


Chess 


03/08/93 


92 DHR 1614 


Chess 


03/09/93 


93 DHR 0010 


Becton 


03/11/93 



PUBLISHED DECISION 
REGISTER CITATION 



Cynthia Reed v. Human Resources 

Helm's Rest Home, Ron J. Schimpf /Edith H. Wilson v. Human Resources 92 DHR 1604 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler v. Human Resources 

Samuel Benson v. Office of Admin. Hearings for Medicaid 

INSURANCE 

Carolyn M. Hair v. St Employees Comprehensive Major Medical 92 INS 1464 Chess 03/10/93 

JUSTICE 

Colin Carlisle Mayers v. Sheriffs' Ed. & Training Stds. Comm. 
Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed. & Training Stds. Comm. 
Sherri Ferguson Revis v. Sheriffs' Ed. &. Training Stds. Comm. 
Mark Thomas v. Sheriffs" Ed. & Training Standards Commission 
N.C. Alarm Systems Licensing Bd. v. Vivian Darlene Gaither 

LABOR 

Greensboro Golf Center, Inc. v. Labor 92 DOL 0204 Nesnow 04/15/93 

MORTUARY SCIENCE 



92 DOJ 0761 


Morrison 


05/10/93 


92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1756 


Gray 


03/23/93 


93 DOJ 0151 


West 


04/21/93 


93 DOJ 0202 


Chess 


05/10/93 



Board of Mortuary Science v. Triangle Funeral Chapel, Inc. 

STATE PERSONNEL 

Frances K. Pate v. Transportation 

Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans. Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Bernie B. KelUy v. Correction 
Brenda G. Mitchell v. Correction 
Clayton Brewer v. North Carolina State University 
Sherman Daye v. Transportation 
Donnie M. White v. Correction 

Gregory Samuel Parker v. Environment, Health, &. Natural Resources 
Renee E. Shepherd v. Winston-Salem State University 
Eva Dockery v. Human Resources 

Gregory Samuel Parker v. Environment, Health, & Natural Resources 
Willie Granville Bailey v. Winston-Salem State University 
Julia Spinks v. Environment, Health, Sl Natural Resources 
James B, Price v. Transportation 
I. Gary NaiUing v. UNC-CH 
Deborah Barber v. Correction 
Laverne B. Hill v. Transportation 
Jimmy D. Wilkins v. Transportation 

Sarah W. Britt v. Human Resources, C.A. Dillon School, CPS 
Herman James Goldstein v. UNC-Chapel Hill et al. 
Glinda C. Smith v. Wildlife Resources Commission 
William Kenneth Smith Jr. v. Broughton Hospital (Human Resources) 
Larry O. Nobles v. Human Resources 
Willie Thomas Hope v. Transportation 
Suzanne Ransley Hill v. Environment, Health, & Nat. Res. 
Herman James Goldstein v. UNC-Chapel Hill et al. 
John B. Sauls v. Wake County Health Department 
Gilbert Jaeger v. Wake County Alcoholism Treatment Center 
Joseph Henry Bishop v. Environment, Health, & Natural Res. 



92 BMS 1169 



Reilly 



04/29/93 



S:4 NCR 396 



88 OSP 0340 


Morrison 


05/03/93 




90 OSP 1064** 


Mann 


05/04/93 




90 OSP 1065*' 


Mann 


05/04/93 




90 OSP 1066** 


Mann 


05/04/93 




90 OSP 1067*" 


Mann 


05/04/93 




90 OSP 1068** 


Mann 


05/04/93 




91 OSP 0344 


Morrison 


05/27/93 




91 OSP 0625 


West 


03/08/93 


8:1 NCR 75 


91 OSP 0941 


West 


04/02/93 


8:3 NCR 306 


91 OSP 0951 


West 


05/07/93 




91 OSP 1236 


Morgan 


04/05/93 




91 OSP 1344** 


Chess 


05/20/93 




91 OSP 1391 


Morgan 


04/28/93 




92 OSP 0010 


Chess 


05/03/93 




92 OSP 0188*' 


Chess 


05/20/93 




92 OSP 0285 


Morrison 


03/10/93 




92 OSP 0313 


Becton 


04/12/93 


8:4 NCR 382 


92 OSP 0375 


Gray 


04/13/93 




92 OSP 0394 


Becton 


04/20/93 




92 OSP 0396 


Chess 


03/04/93 




92 OSP 0431*' 


West 


03/08/93 




92 OSP 0432*' 


West 


03/08/93 




92 OSP 0455 


West 


05/26/93 


8:6 NCR 484 


92 OSP 0634 


Morrison 


05/04/93 




92 OSP 0653 


Morrison 


03/12/93 




92 OSP 0684 


Becton 


05/10/93 




92 OSP 0732 


Mann 


04/23/93 




92 OSP 0947 


Morgan 


03/23/93 




92 OSP 0992 


Reilly 


03/18/93 


8:2 NCR 224 


92 OSP 1047 


Morrison 


05/04/93 




92 OSP 1142 


Reilly 


03/08/93 


8:1 NCR 88 


92 OSP 1204 


Reilly 


05/10/93 




92 OSP 1243 


Reilly 


03/05/93 





8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



482 



CONTESTED CASE DECISIONS 



AGENCY 



Willie L. Hudson V. Correction 

Brenda K. Campbell v. Employment Security Commission 

James B. Price v. Transportation 

Belly Bradsherv. UNC-CH 

Jama! Al Bakkat-Morris v. Glenn Sexton (DSS) 

Brenda Kay Barnes v. Human Resources 

Larry G. Riddle v. Correction, Division of Prisons 

Stevie E. Dunn v. Polk Youth Center 

Buford D. Vieregge Jr. v, N.C. Slate University. University Dining 

Barbara A. Johnson v Human Resources 

Carrie P- Smith v. County of Stanly 

George W. Allen v. Human Resources. Correction, Agri & EHNR 

William G. Fisher v. St Bd o( Ed. Albermade City Schools & Bd of Ed 

Clifton E. Simmons v. Correction 

Willie L. James v. Caswell Center 

Ining S. Rodgers v. C.A. Dillon, Division of Youth Services 

Jerrv D, Doss Sr. v. Correction 



CASE 




DATE OF PUBLISHED DECISION 


>anviBER 


AL,I 


DECISION REGISTER CITATION 


92 OSP 1468 


Be^;ton 


05/26/93 


92 OSP 1505 


Morrison 


03/17/93 


92 OSP 1657 


Mann 


03/19/93 


92 OSP 1733 


Becton 


03/30/93 


92 OSP 1741 


Becton 


03/24/93 


92 OSP 1768 


Morrison 


03/17/93 


92 OSP 1774 


Gray 


04/26/93 


92 OSP 1789 


Becton 


04/19/93 


92 OSP 1796 


Morrison 


05/27/93 


93 OSP 0103 


Morrison 


03/17/93 


93 OSP 0109 


Beclon 


04/01/93 


93 OSP 0111 


Reilly 


04/16/93 


93 OSP 0134 


Becton 


04/20/93 


93 OSP 0159 


Morrison 


04/21/93 


93 OSP 0171 


Morgan 


05/27/93 


93 OSP 0177 


West 


04/21/93 


93 OSP 0287 


Gray 


05/17/93 



i 



STATE TREASURER 



Herman D. Brooks v. Bd of Trustees /Teachers* &. Si Emp Ret Sys 
Henrietta Sandlin v. Teachers' &. State Emp Comp Major Medical Plan 
Mary Alyce Carmichael v. Bd /Trustees /Teachers' & St Emp Ret Sys 



91 DST0566 


Gray 


04/13/93 


92 DST 0305 


Morgan 


04/12/93 


92 DST 1506 


Chess 


04/08/93 



TRANSPORTATION 

^'ates Construction Co., Inc. v. Transportation 



92 DOT 1800 Morgan 03/25/93 



i 



483 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

92 OSP 0455 



SARAH W. BRITT, 
Petitioner, 



V. 



N. C. DEPARTMENT OF HUMAN RESOURCES, 
DIVISION OF YOUTH SERVICES, C.A. DILLON 
SCHOOL, AND N.C. DEPARTMENT OF CRIME 
CONTROL AND PUBLIC SAFETY, 
Respondent. 



RECOMMENDED DECISION 



STATEMENT OF THE CASE 

This contested case was heard on the merits between January 21, 1993 and January 28, 1993 in 
Raleigh by Administrative Law Judge Thomas R. West. 

Petitioner, Sarah W. Britt (Britt), was continuously employed by Respondent Department of Human 
Resources (DHR) from 1979 to June 1991 in its Division of Youth Services. In June 1991, Britt was 
employed at the C. A. Dillon School as a Volunteer Services Director I (Grade 66). On June 30, 1991, Britt 
was separated from employment pursuant to a reduction in force. 

Between June 19, 1991 and June 6, 1992, Britt applied for 16 positions at DHR and 4 positions at 
the Department of Crime Control and Public Safety (CC&PS). On June 15, 1992, DHR offered the position 
of DHR Volunteer Services Coordinator at Dorothea Dix Hospital (Grade 63) to Britt. Britt accepted the 
position. 

On April 23, 1992, Britt filed a petition for a contested case hearing against DHR and CC&PS. Britt 
alleges that Respondents failed to hire her in accordance with Reduction in Force (RIF) policies and 
procedures, that Respondents denied her priority as a career state employee, and that Respondents 
discriminated against her on the basis of age and political discrimination. 

Prior to the hearing, dispositive motions were filed by Respondents and heard. 

L 

On June 1 , 1992, Respondents filed a "Motion to Dismiss or, in the Alternative, Motion for Summary 
Judgment and Motion for More Definite Statement." Petitioner responded on June 12, 1992 and on July 6, 
1992 a hearing was held on the motions. At the hearing, the Administrative Law Judge made the following 
rulings on the record; 

a. The motions were DENIED with regard to Petitioner's claims of discrimination on the basis 
of age and gender; 

b. A limiting instruction was given regarding evidence. The judge ruled that no evidence would 
be received to show that Petitioner had been denied priority re-employment rights for the 
following positions: 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



484 



CONTESTED CASE DECISIONS 



i. Volunteer Services Program Consultant (Grade 70 DHR); See Ex. J^ #20; 

ii. Staff Development Specialist III (Grade 70 DHR); See Ex^ L, #15; 

iii. Rehabilitation Therapy Supervisor (Grade 68 DHR); See Ex. L^ #24; 

iv. Community Development Specialist I (Grade 70 CC&PS); See Ex. L^ #25 . 

Britt was at a pay Grade 66 when RIFed and has no right to priority re-employment in 
positions graded higher than 66. 

c. Britt v-as ordered to file a more definite statement of the positions for which she claimed 

relief. 

These Orders were stated on the record and can be found in Volume I of the transcript of this 
contested case. 

n- 

On Januan,' 11. 1993. DHR filed a "Second Motion to Dismiss or. in the Alternative. Motion for 
Summan,' Judgment." Britt responded on January' 19, 1993. The motion was heard at 2:00 p.m. on January 
20, 1993, and the judge announced his ruling at the conclusion of the hearing. The specific motions and 
rulings are as follows: 

JURISDICTION - The motions v.ere DENTED. G.S. 126-36 empowers the Personnel Commission 
to grant relief to former state employees for claims of political discrimination. Petitioner became a former 

state employee when her position was RIFed. 

FAILURE TO TI.MELY FILE A PETITION - DHR moved to dismiss claims relating to the following 
positions listed in Petitioner's Exhibit 1 for failure of the Petitioner to file a petition within the time limit set 
forth in G.S. 126-38: 

1 . DHR Rehab. Therapeutic Activity Coordinator; 

2. DHR Advocate II; 

9. DHR Facility Services Admin. I; 

20. DHR Volunteer Service Program Consultant; 

21. DHR Staff Development. 

The Administrative Law Judge DENIED the motions ruling that the time limit for filing a petition had 
not begun to run since there is no e\idence that Britt receixed the notice of appeal rights required by G.S. 
150B-23. 

POLITICAL DISCRI.MINATION. LACK OF .MINIMUM QUALIFICATIONS -Motions relating to these two 
issues were DENTED. Issues of material fact existed. 

m. 

At the close of Britt's case, her counsel made a motion for a directed verdict (Rule 50 1. The motion 
was DENIED. 

CC&PS made a motion on the record, pursuant to Rule 41 to dismiss Britt's claim relating to the 



485 8:6 NORTH CAROLINA REGISTER June 15, 1993 



CONTESTED CASE DECISIONS 



Community Services District Coordinator position #09209 (Ex. 1, #8). The motion was GRANTED. The 
evidence, when considered in the appropriate light, shows that the person who filled that position was a 
transfer from within CC&PS so that Britt had no priority RIF rights to the position. CC&PS made a motion 
pursuant to Rule 41 to dismiss Britt's claim relating to the positions described in Ex. 1, #25, #31, and #40. 
The motions were DENIED. 

DHR made a motion on the record, pursuant to Rule 41 to dismiss Britt's claims relating to those 
positions described in Ex. 1 numbers 1,2, 3, 23, 24, 56, 15, 19, 20, 21, 68, 33, and 46. Tlie motions were 
DENIED. 

At the close of her case, Britt withdrew any claim relating to the DHR Vocational Rehab. Advocate 
Specialist I position. See Ex. \_^ #56. 



Britt's claim of age discrimination is limited to CC&PS and to only one position - position #31 on 
Ex. 1, Community Development Specialist I. 

Britt's claim of political discrimination extends to twelve (12) positions. The positions are listed on 
Ex. 1 as numbers: 

1, 2, 3, 15, 19, 20, 21, 23, 24, 25, 33, and 46. Britt argues that she was discriminated against for political 
reasons when she was not hired for these positions because: 

a. She met the stated qualifications; 

b. She had priority re-employment rights which could have been satisfied by being offered a 
position graded higher than 66; 

c The positions at issue are not exempt; 

d She is an active Democrat; 

e. Only people recommended by the Governor or department secretary were hired. 

Britt's priority re-employment claim is two-fold. Britt argues she is entitled to relief because of 
Respondents' procedural violations and because she was denied priority re-employment in two (2) positions 
at Grade 66 or below for which she met the qualifications. 

A chart outlining Britt's claims follows: 

Violation of RIF Political 



DHR 1 1 

DHR 2 

DHR 3 

DHR 15 

DHR 19 

DHR 20 

DHR 21 

DHR 23 23 

DHR 24 

CC&PS 25 

CC&PS 31 

DHR 33 

CC&PS 40 

DHR 46 



8:6 NORTH CAROLINA REGISTER June 15, 1993 486 



CONTESTED CASE DECISIONS 



WITNESSES 

Petitioner Britt called the following witnesses: 

1. Sarah W. Britt - Petitioner. 

2. Gwendolyn C. Chunn - Director, Division of Youth Services (DYS), DHR. 

3. Joyce Weathersby - Personnel Analyst I, Office of State Personnel. 

4. Bruce Marshburn - Deputy Director of the Governor's Crime Commission. 

5. Susan Hutchins - Personnel Director, DHR. 

6. Grady Stephenson - Personnel Director, DYS, DHR. 

7. Robert M. Sumpter - Personnel Officer, Murdoch Center, DHR. 
Respondent DHR called the following witnesses: 

1. Sandy Brock - Director of Personnel, John Umstead Hospital, DHR. 

2. Kathy Watson - Personnel Manager, Office of the Secretary, DHR. 
Respondent CC&PS called the following witness: 

1. Arthur C. Zeldman - Director of Victim and Justice Services Division, CC&PS. 

EXHIBITS 

Exhibits listing has been omitted from this publication. It can be obtained by contacting this office. 

OFFICIAL NOTICE 

Official notice is taken of: 

1. Chapter 126 of the General Statutes of North Carolina. 

2. Title 25 of the North Carolina Administrative Code. 

3. PERSONNEL MANUAL - Office of State Personnel. 

BURDEN OF PROOF 

Britt has the burden of proving by the greater weight of the substantial evidence that she is entitled 
to the relief requested in her petition. 

Based upon the exJiibits and the testimony of the witnesses, including an analysis of their credibility, 
based partially upon personal observation, the undersigned finds the following to be the facts: 

FINDINGS OF FACT 

\. Petitioner Sarah W. Britt (Britt) is a white female older than forty (40) years of age. Britt is 

approximately sixty (60) years old. 

2. Britt began work at the C.A. Dillon School in August, 1979 as an Administrative Officer I. In June, 

487 8:6 NORTH CAROLINA REGISTER June 15, 1993 



i 



i 



i 



CONTESTED CASE DECISIONS 



1980, she became the Volunteer Services Coordinator II for the school. In 1985 or 1986, Britt moved to a 
Volunteer Services Coordinator I position. Grade 66. 

3. TTie C. A. Dillon School is an institution within the Division of Youth Services, Department of 
Human Resources. 

4. On June 30, 1991, Britt lost her job at C. A. Dillon School as the result of a Reduction in Force 
(RIF). Britt was earning Thirty Thousand, Six Hundred Fifty-one ($30,651.00) Dollars. 

Britt was a permanent state employee entitled to the protections of Chapter 126 of the General Statutes 
of North Carolina. 

5. As a matter of law, Britt was entitled to priority consideration for re-employment for one year 
following her dismissal (RIF), subject to certain conditions. 

6. The following conditions applied to Britt's right to priority consideration for re-employment: 

a. DHR was required to offer Britt any available vacant position of a salary Grade 66 or below 
from and after the time she was notified of her RIF, provided Britt met the qualifications for 
the position and could perform the job in a reasonable length of time, including normal 
orientation and training given any new employee; 

b. All other agencies were required to interview Britt for any vacant position for which she had 
priority status and was qualified prior to employing anyone who is not a permanent state 
employee; 

c. Britt's right to priority re-employment status terminated after she had received twelve (12) 
months priority re-employment consideration. 

7. In addition to the priority rights Britt enjoyed as a matter of law due to her status as a permanent state 
employee, Britt was granted additional rights as a matter of policy by DHR; 

a. Prior to the actual separation, DYS and the Dillon School were required to attempt to place 
Britt in another position within the division or institution that was vacant and for which she 
met the minimum qualifications; 

b. When Britt was not placed in a position in DYS or Dillon sixty (60) days before her 
scheduled separation (June 30, 1991), she was entitled to priority placement status for 
vacancies in other divisions and institutions in DHR. 

8. Pursuant to law and policy DHR had certain responsibilities to Britt: 

a. DHR was required to give notice to Britt of her impending RIF as soon as possible and 
preferably at least forty-five (45) calendar days prior to the scheduled separation; 

b. Simultaneously with notifying Britt of her RIF rights, DHR was required to apply to the 
Office of State Personnel (OSP) that Britt wished to be advantaged by the automated priority 
referral system operated by OSP; 

c. The personnel manager at Dillon or DYS was required to inform Britt of the location of the 
combined DHR vacancy report. If Britt made the personnel manager aware of vacancies in 
which she was interested, the manager was responsible for forwarding a completed, current 
application to the personnel manager of the division or institution with the vacant position, 
certifying priority placement status and that the individual meets minimum general qualifica- 
tions for the position. 



8:6 NORTH CAROLINA REGISTER June 15, 1993 488 



CONTESTED CASE DECISIONS 



9. Pursuant to policy set forth in OSP's PERSONNEL MANUAL, DHR and CC&PS were required to 
refer to the current Priority Re-employment Inventory when a vacancy occurred. When priority applicants 
are indicated for the vacancy, the agencies must request a Priority Re-employment Certificate from OSP. 

10. Britt was RIFed effective June 30, 1991 at a salary Grade 66, earning Thirty Thousand Six Hundred 
Fifty-one Dollars ($30,651.00). On June 15, 1992, DHR re-hired Britt as the Volunteer Services Coordinator 
at Dorothea Dix Hospital in a salary Grade 63 at a salary of Twenty-nine Thousand Eight Hundred Fifty-two 
($29,852.00) Dollars. The salary is the maximum for Grade 63. Eight Thousand Nine Hundred Forty Dollars 
($8,940) was transferred from DYS to Dix in order to place Britt as close to her former salary as possible. 

11. In interrogatories served on DHR, Britt asked DHR to identify all persons within DHR and OSP who 
contacted Britt about vacancies within state government for which she was eligible in accordance with the 
policy described above in Finding of Fact 8(c). DHR failed to name any employee of DHR who informed 
Britt of the locations of the combined departmental vacancy report which DHR policy required be made 
available to Britt. DHR answered that it had no knowledge of any person from OSP who contacted Britt. 

12. DHR gave notice to Britt on June 10, 1991 that her employment would be terminated effective June 
30, 1991 . Susan Hutchins, Personnel Director of DHR testified that the reduction in force was due to budget 
shortfalls, that it began developing a RIF plan in February, 1991, that the General Assembly mandated cuts 
as of June 30, 1991, that DHR was not even aware of until late May 1991 and that the decision to RIF 
Volunteer Service Directors at DYS was not approved until June 7, 1991. 

Gwen Chunn, Director of DYS testified that she began work on the June 1991 RIF in August 1990. 

Although all five (5) Volunteer Service Director positions were RIFed in June 1991, only four (4) 
people were displaced because a person holding one of the positions had taken another position in the Fall of 

1990 because of her awareness of the impending RIF. 

Chunn testified that she would be surprised if June 10, 1991 was the first that Britt knew of the 
impending RIF of her position because of talk among DYS employees and publications in the newsletter about 
impending cuts stating that direct care positions would be the last to be cut. 

13. Britt first learned of the existence of a "RIF Register" in January 1992 as the result of a conversation 
with employees of OSP. 

14. On June 19, 1991, Britt applied for the position Rehabilitation Therapeutic Activity Coordinator 
(Grade 66) at the John Umstead Hospital. (PI, #1) Umstead is an institution within DHR. 

Britt was told of the vacancy by Susan Fortner, who was Personnel Manager for DYS. Fortner told 
Britt she had discussed the vacancy with Gail Harvey in the personnel department at Umstead and that they 
felt Britt was qualified for the vacancy. 

15. On July 16 or 19, 1991, Britt went to see Secretary Flaherty, Secretary of DHR on a matter unrelated 
to this contested case. Secretary Flaherty asked Britt how she liked her job at Umstead. Britt told the 
Secretary she was not working there, and that she had not interviewed. Secretary Flaherty asked Britt if she 
were interested. Britt responded that she was, and Flaherty told her he would see she got an interview. At 
the end of the meeting, Flaherty called Hutchins into his office, introduced her to Britt, told Hutchins a little 
about Britt's work history and told Hutchins that he wanted her to do what she could to help Britt find a job. 

In 1985, Secretary Flaherty had made the comment to Britt one time that if she wanted to get ahead 
at DHR, she knew what she needed to do. Britt interpreted the remark to mean that she needed to change 
her registration from Democrat to Republican. 

16. Britt called and arranged for an interview. She interviewed on August 19. 1991 and on August 20, 

1991 was rejected for the job for the reason that she lacked the minimum qualifications for the position. 



489 8:6 NORTH CAROLINA REGISTER June 15, 1993 



CONTESTED CASE DECISIONS 



17. The specification for the position of Rehabilitation Therapy Coordinator provides that the minimum 
education and experience is graduation from a four (4) year college with a degree in recreation, physical 
education, or a human services field and two years of experience in therapeutic programming which involves 
program/goal planning. 

18. Britt received a B.S. degree from Wake Forest University in 1953. Her major areas of course work 
were health, physical education and recreation. From September 1953 to June 1956, Britt taught junior high 
school girls health and P.E. and coached basketball and tennis. 

From 1958 to 1959, Britt taught math, health and P.E. to seventh graders. In 1979, Britt taught all 
subjects to eighth (8th) graders in the Robeson County Schools, and in 1978 and 1979 was a tutor for reading, 
math, geography, and typing at Robeson Community College. 

From August 1979 to June 1980, Britt was the Business Administrator at the C. A. Dillon School. 
In June, 1980, Britt became the Director of Volunteer Services at Dillon. In March, 1991, she assumed the 
additional responsibility of Staff Training Coordinator. 

At the meeting in March 1991 at which this additional duty was assigned, Chunn stated to the four 
Volunteer Services Directors in attendance that they knew how they had gotten their jobs, and knew how they 
could lose them. Britt had originally received her job by appointment of the Governor. Britt thought the 
remark was unusual, and now believes it to be a comment about the impending RIF of her position. 

19. After being rejected for the position, Britt talked with Flaherty and asked for reconsideration because 
a lot of her work in recreation had been in unpaid positions and had not been on her application. The 
Secretary encouraged Britt to write a letter asking for reconsideration listing everything she had done in the 
field of recreation. Britt did so. 

20. On September 9, 1991, Umstead again rejected Britt's application for the reason that she lacked the 
minimum qualifications. 

21. Britt believes she met the qualifications for the Rehabilitation Therapeutic Activity Coordinator 
position because of her experience teaching health and P.E., her work with adolescents, her college degree 
in teaching, and her recreational work. 

22. No evidence was presented by DHR during the contested case hearing regarding why Umstead 
concluded Britt was not qualified for position #1. 

23. Position #1 was frozen at the time Britt applied for it. The position was filled in June 1992, after 
Britt became employed at Dix by Ms. Toni Rankin. Rankin received her B.A. in Psychology from East 
Carolina University in 1984 and is well qualified for the position. DHR did not describe Rankin as a 
permanent state employee in its answers to interrogatories. Rankin was not recommended by the Governor 
or Secretary Flaherty. 

24. In July 1991 , Britt began working with Joyce Weathersby, a Personnel Analyst at OSP. Weathersby 
works with people who have been RIFed. 

Part of Weathersby 's duties are to evaluate RIFed employee's qualifications to determine if that person 
meets the minimum qualifications for a position. It is then the responsibility of the interviewing agency to 
determine if the applicant is qualified for the vacancy. Weathersby does not refer RIFed employees for 
interviews for vacancies unless she is satisfied they have the minimum qualifications described for the position. 



8:6 NORTH CAROLINA REGISTER June 15, 1993 490 



CONTESTED CASE DECISIONS 



Weathersby suggested Britt apply for the following positions listed in Ex. 1: 
31 



1 


9 


2 


20 


3 


23 


8 


27 



25. On October 3, 1991, Britt applied for two positions at Murdoch Center, DHR Advocate I and DHR 
Advocate II. (Ex. 1, §2, 3). On October 3, 1991, Robert Sumpter, Personnel Manager of Murdoch wrote Britt 
a letter rejecting her application on the basis that "... the educational and experience qualifications of the 
Advocate I and II positions do not match up to [Britt's] ver^' rich background " 

The Advocate I position was pay Grade 68. The Advocate II position was pay Grade 69. There is 
no evidence that the positions were filled by someone recommended by the Secretary of DHR or the Office 
of the Governor. 

DHR filled the positions of Advocate I and Advocate II with state employees employed at Murdoch 
who were qualified for the positions. 

26. On November 7, 1991 , Britt applied for the position of Community Services District Coordinator for 
Wake County. The position is with CC&PS and is a salary Grade 64. Britt was not interviewed. TTie 
position was eventually filled by a Community Services District Coordinator for Wilson County who 
commuted daily from Raleigh to Wilson. The state employee transferred into the position requested the 
transfer because of a degenerative eye condition which made it dangerous for her to drive after dark. 

27. On November 13, 1991, Britt applied for the position of Facility Services Administrator I with DHR 
(Ex.1, #9). The position is at salary Grade 67. On November 13, 1991, Britt interviewed for the position. 
Britt met the minimum requirements for the position. 

On February 3, 1992, Jacquelyn A. Norris, Head of the Health Care Facilities Branch wrote Britt that 
she had not been chosen, and that the position had been offered to Wayne Denning. Denning accepted the 
position. Denning was a permanent state employee employed as the manager of the Courier Service. Denning 
was recommended for the position by the Governor's office. 

28. When an applicant was recommended to Respondents by the Governor's office or the office of the 
Department Secretary, the applicant went on a "must interview" list. 

29. On December 20, 1991, Britt applied for the position of Staff Development Specialist III with DYS 
(Ex. 1, #15). Tlie position is a salary Grade 70. Britt met the minimum requirements for the position. Britt 
was not hired to fill the position. 

30. The Staff Development Specialist III position was filled by Kim Davis-Gore at a salary of around 
Thirty Thousand Dollars ($30,000). Gore was not recommended by either the office of the Governor or the 
DHR Secretary but was recommended by George Jones, an Assistant Secretary of DHR. 

31. Chunn testified that Davis-Gore was the most qualified person who applied for the position. Chunn 
testified that traditionally the person who holds the Staff Development Specialist III position has had a 
Master's Degree. TTie client base the position serves is seventy percent (70%) black and eighty-five percent 
(85%) male. Chunn testified that DYS had an affirmative action plan, and that in addition to being most 
qualified for the position, Davis-Gore, who is a black female, was hired pursuant to the plan. 

32. The Staff Development Specialist III position was not part of DYS' affirmative action plan in 1991. 
On Davis-Gore's application, an "x" appears next to the word "yes" in the column "Grad?" indicating she had 
a Master's Degree in Criminal Justice from the University of South Carolina. In answers to interrogatories 



491 8:6 NORTH CAROLINA REGISTER June 15, 1993 



CONTESTED CASE DECISIONS 



propounded by Britt, DHR answered that Davis-Gore had thirty-six (36) hours toward her M.A. in Criminal 
Justice. 

33. Britt was interviewed for the job filled by Davis-Gore because she met the minimum qualifications 
for the position, but not hired because she had no priority right to the job. If Britt had been offered the job 
and turned it down, her RIF rights would have terminated. 

34. Before moving to the Staff Development Specialist position, Davis-Gore was a Unit Administrator 
at the Dillon School. As such, she oversaw programming in a unit housing thirty-three (33) male youths, and 
counseled students and staff as needed . 

35. When the decision to hire Davis-Gore was made, Chunn had no knowledge that Britt had teaching 
experience. At the time of the hearing of this case, Chunn was aware that Britt is a professional teacher, but 
that awareness was irrelevant to Chunn because she would have wanted to have observed Britt's teaching. 
Chunn believes that Britt had no experience in stand up design and delivery of training. 

36. Davis-Gore is well qualified for the position of Staff Development Specialist III. 

37. On January 14, 1992, Britt applied for the position of Personnel Analyst in the Office of the Secretary 
of DHR. (Ex. 1, #19) The position is at salary Grade 70. Britt met the minimum requirements for the 
position. Britt was not interviewed for the position. The evidence suggests that no such position actually 
existed. 

38. On January 21, 1992, Britt applied for the position of Volunteer Service Program Consultant in the 
Office of the Secretary of DHR (Ex. 1, #20). The position is at salary Grade 70. 

In response to interrogatories propounded by Britt asking DHR to identify those positions for which 
Britt did not meet the minimum requirements, DHR did not list position #20. 

Britt met the minimum qualifications for the position. Britt was not interviewed, because in Hutchins' 
words, she was not qualified and had no RIF priority for the job. Kathy Watson, the Personnel Manager in 
the Office of the Secretary of DHR testified that the supervisor of the position. Will Lindsey, determined that 
Britt did not have the background they needed in that particular role. Lindsey was looking for someone who 
had some training and experience in managing training workshops. Britt received no letter stating why she 
was not selected for the position. 

39. Dot Ling, a permanent state employee, filled the position. Ling was recommended by Secretary 
Flaherty. 

40. Ling was interested in the position because she was in an exempt position and interested in 
transferring to a position subject to the Personnel Act. Position #20 is subject to the Personnel Act. Before 
moving to position #20, Ling served as Special Assistant to the Secretary of Correction for six (6) years and 
eight (8) months. 

41. The "Minimum Education and Experience" required for the position of Volunteer Services Program 
Consultant I are, ["g]raduation from a four (4) year college or university and three years of experience in 
human service programs or community development work including at least eighteen (18) months of 
experience in a volunteer services program in a hospital, institution, or community program, one of which 
should have been in coordinating or directing the program, or an equivalent combination of education and 
experience." 

42. Ling does not have a degree from a four-year college. 

43. Ling's application for position #20 is dated August 6, 1991 and was received in the DHR Secretary's 
office on September 30, 1991 . The last (2) two pages of Ling's application were received by the Secretary's 



8:6 NORTH CAROLINA REGISTER June 15, 1993 492 



CONTESTED CASE DECISIONS 



office on January 31, 1992, but were not used in the analysis that Ling qualified for the position. 

44. Kathy Watson analyzed Ling's application and determined that she met the minimum qualifications 
for position #20. Watson determined that Ling's one (1) year of Business College experience, four (4) years 
as Associate Director of the Mental Health Association in North Carolina, three and a half (3 1/2) years as 
Regional Administrator of the Patient Advocate Program at Dorothea Dix Hospital, and one (1) year of part 
time work as a Community Education Coordinator of Drug Action of Wake County met the equivalency 
requirement for the job. 

45. Ling meets the minimum qualifications for position #20. 

46. Britt has known Secretary Flaherty for approximately twenty-five (25) years since Mr. Flaherty and 
Mrs. Britt's deceased husband served in the General Assembly together. Secretary Flaherty knew Britt to be 
an active Democrat. 

During the race between Lt. Governor Jordan and Governor Martin, Britt served on Mr. Jordan's 
steering committee. This was known to officials at DYS. 

Britt believes that if anybody in DHR helped her in the process of finding a job after she was RJFed, 
it was Secretary Flaherty. Britt testified that about two (2) weeks after she became re-employed in June 1992, 
she had lunch with Secretary Flaherty. He asked her how she was getting along in her new job, and told Britt 
he had worked very hard to get Faye McArthur promoted to the Director 11 position and to get Britt placed 
in the Volunteer Coordinator position that McArthur vacated. 

Britt feels that Secretary Flaherty discriminated against her when Dot Ling was hired for the position 
of Volunteer Service Program Consultant (Ex. 1, #20) because Ling was a Republican, had not been RIFed, 
and was moved from an exempt position to one subject to the Personnel Act, and when McArthur, who she 
believes to be a Republican was promoted to the position of Volunteer Service Director 11. 

47. On January 28, 1992, Britt applied for a Staff Development position in the DHR Secretary's office 
(Grade 72). In response to interrogatories propounded by Britt, DHR did not identify this position (Ex.1, #21) 
as a position for which Britt did not meet the minimum qualifications. Britt met the minimum qualifications 
for position #21 . 

48. Britt was not interviewed for position #21. 

49. Position #21 was filled by Barbara Kunz. Kunz was not recommended by either the Governor or a 
department secretary. 

50. Kunz was referred to Susan Hutchins by G. C. Davis, Jr. Assistant Director of the Office of State 
Personnel. Davis told Hutchins that Kunz had been in a training position at OSP, and was a prospective RIF 
because of cuts mandated by the General Assembly. Davis told Hutchins that Kunz had been informally 
notified that her position would be RIFed, that Kunz had not been given official RIF notification, and that if 
he needed to go ahead and give Kunz a RIF notice so she would have formal RIF status that he was willing 
to do that. Davis asked Hutchins to consider Kunz and Hutchins said she would be happy to do so because 
of Kunz' s credentials, and employment in a higher level position at OSP than position #21. 

51. The evidence is contradictory as to Kunz's status as a permanent state employee. In answer to 
interrogatories propounded by Britt, DHR identifies Kunz as a permanent employee. Yet, Hutchins testified 
that Kunz was described as a "trainee" and that one of the reasons she considered Kunz was that she was in 
a higher position at OSP than position #21, which was at pay Grade 72. 

Kunz's application indicates that she was employed by OSP for one year and two months from 
November 15, 1990 at an annual salary of $30,000.(30. The application appears to indicate in handwriting 
within the box marked "Starting Salary" that Kunz was employed at a salary grade of 70. 



493 8:6 NORTH CAROLINA REGISTER June 15, 1993 



CONTESTED CASE DECISIONS 



) 



It is permissible to infer from the evidence that Kunz was not employed at OSP at a salary grade 60 
or lower and was not a permanent State employee. 

52. DHR acknowledges in the answers to interrogatories propounded by Britt that Kunz had no RIF rights 
under Chapter 126 of the General Statutes of North Carolina. 

53. Kunz was qualified for position #21. 

54. On February 5, 1992, Britt applied for the position of Personnel Technician at DYS (Ex. 1, #23). 
The position is set at salary Grade 66, the same salary Grade in which Britt was employed when RIFed from 
Dillon School within DYS. Britt was not interviewed for the position. Britt was notified by letter dated March 
26, 1992 signed by Grady Stephenson that he had determined she did not qualify for the position because she 
did not have enough personnel-related experience in order to qualify for the position. 

55. The minimum education and experience for position #23 is ," [g]raduation from high school and (5) 
five years of progressively responsible clerical-administrative or administrative work, preferably with two (2) 
years of experience in a personnel office; or graduation from a four (4) year college or university and six (6) 
months of personnel related experience; or equivalent experience demonstrating the required knowledge and 
abilities." 

56. The contact person for position #23 was Grady Stephenson, Personnel Director of DYS. 

57. Stephenson did not select Britt because, as he wrote in a memo dated November 23, 1992, Britt 
"...did not have any personnel-related experience. [Stephenson] did not feel she would qualify." 

58. Weathersby of OSP felt Britt met the minimum qualifications for position #23, and recommended she 
apply. 

59. In determining that Britt was not qualified for position #23, Stephenson consulted with Susan Hutchins 
and her subordinate, Candace Slate. 

60. Stephenson was familiar with Britt's work as an Administrative Officer for ten (10) months in 1979 
and 1980. Stephenson prorated the time Britt would have spent on personnel matters in that position as twenty 
percent (20%). Stephenson made this determination without interviewing Britt. As a result, of the pro-ration, 
Stephenson determined that Britt had the equivalent of two (2) months of experience in personnel matters. 

61. In order to meet the minimum qualifications as an Administrative Officer I, an applicant must have 
graduated from a four (4) year college and have one (1) year of experience in personnel, budgeting, research, 
or administrative management. Britt qualified for and held this position in 1979. 

62. Jesselyn Bickham filled position #23. Bickham has a B.A. in Political Science from Fayetteville State 
University, and a Master's in Public Administration from North Carolina Central University awarded in 1987. 
Prior to filling position #23, Bickham had worked at Murdoch Center for two years and seven (7) months as 
an Employee Relations Officer and for ten and a half (10 1/2) months as a Personnel Manager in the Division 
of Health Services, DHR. 

DHR answered in response to Britt's interrogatories that Bickham was recommended by the offices 
of the Governor and the Secretary of DHR, that Bickham had no RIF rights, and that she had been a state 
employee for three (3) years and five (5) months. DHR does not characterize Bickham in its answers as a 
permanent state employee. 

63. Stephenson acknowledged in his testimony that if Britt were determined to have met the minimum 
qualifications for position #23, she would have had priority over Bickham. 

64. Bickham is well qualified for position #23. Bickham is better qualified than Britt for position #23. 



8:6 NORTH CAROLINA REGISTER June 15, 1993 494 



CONTESTED CASE DECISIONS 



Britt meets the minimum qualifications for position #23. 

65. On February 5, 1992, Britt applied for the position of Rehabilitation Therapeutic Supervisor with DYS 
(Ex. 1, #24). The position is graded at salary Grade 68. In answers to interrogatories propounded by Britt, 
DHR did not identify the position as one for which Britt failed to meet the minimum qualifications. Britt is 
qualified for the position. 

Britt was interviewed on March 15, 1992 and rejected for the position on June 10, 1992, after she 
was hired at Dix. 

66. Stephenson, the Personnel Director of DYS, wrote on November 23, 1992, in a memo to Candace 
Slate, that Britt was not selected because she did not have any firsthand knowledge of cottage life or 
therapeutic recreation programs. 

67. Ricky Bunch, a black male thirty-three (33) years of age, was chosen for the position. Chunn 
testified that Bunch was hired pursuant to the Affirmative Action Plan. Seventy percent of the students served 
are black, eighty-five percent (85%) are male, and Chunn felt the central office needed a black male that could 
relate to black males. 

68. The kinds of positions covered by the 1991 Affirmative Action plan were teachers, administrative 
support, and clerical. 

69. Bunch had no RIF priority for position #24. Prior to assuming the position, he was not an employee 
of DYS. 

70. On February 6, 1992, Britt applied for the position of Community Development Specialist 1 (position 
01259) with the Governor's Crime Commission (Ex. 1, #25). The position is at Grade 70. Ms. Beth Crews 
was chosen to fill the position. Crews was a permanent state employee and was recommended for the position 
by the Secretary of Crime Control. Crews had no RIF priority rights. 

71. Britt applied for the position of Community Development Specialist 1 (position 01240) on February 
19, 1992 (Ex. 1, #31). The position is at Grade 70. Mr. Jim Butler was chosen to fill the position. Butler 
was a permanent state employee and was not recommended by a cabinet Secretary or the Office of the 
Governor. Butler had no RIF priority rights. Butler is forty-five (45) years old. 

72. Britt met the minimum qualifications for all positions applied for with CC&PS. 

73. Britt interviewed for position #25 and position #31 on March 3, 1992 with Dr. Dwight Jarvis. Jarvis 
supervised the two (2) positions. Jarvis interviewed twenty-two (22) people, and after the interviews, 
forwarded (8) eight applications to Marshbum for consideration. Britt's application was among the eight (8). 

Britt was rejected for the positions by letter dated March 27, 1992, signed by Bruce Marshburn, 
Executive Director of the Governor's Crime Commission. 

74. Britt spoke by telephone on March 31, 1992 with Marshburn. Britt's testimony and Marshburn's 
testimony is somewhat conflicting: 

a. Britt testified that Marshburn said there was no criticism from her interview, but that at 
Britt's age, she was too old to do the travel. Then Marshburn related to Britt they had some 
females in the department who had to do some traveling and one of them was coming back 
very late at night and the state car broke down, and he was concerned about having to put 
a female out on the road. Marshbum told Britt at her age he did not feel like she could do 
the travel; 

b. Marshburn testified that he remembered speaking with Britt, but not the date of the 



495 8:6 NORTH CAROLINA REGISTER June 15, 1993 



CONTESTED CASE DECISIONS 



conversation. Marshbum does not recall Britt asking for any constructive criticism because 
he would not have been in a position to give her any since he did not interview her. Britt 
explained that she had called Dr. Jarvis and that he had suggested that Britt call Marshbum. 

Marshburn testified that he wanted to talk with Britt about travel, because on her application 
she had not checked the block indicating she would accept work involving travel. Britt told 
him she would not object to traveling. Marshbum recalls discussing with Britt problems of 
female employees that have traveled. Marshburn is concerned about people traveling in 
general, especially those who travel late at night. 

Marshbum testified that he is fifty-two (52) years old, and told Britt that being fifty-two (52) 
he did not enjoy traveling as much as he used to; that he had always enjoyed traveling, but 
the older he got the more concemed he is about traveling and the more of a burden it is. 

Marshburn denied that he had told Britt that at her age she was too old to travel, saying, "I 
would not have made a statement like that." 

75. At one point during cross examination by Britt's counsel, Marshbum acknowledged that he did discuss 
with Britt the problems of female employees that have traveled. Later, during that cross examination, 
Marshburn said that the problem of two (2) female employees being stranded late at night was in his mind 
when he was talking with Britt. At the close of the cross examination, the judge asked Marshbum to clarify 
his testimony. Marshburn replied, "I was concemed about that in my own mind. I wanted to relay to her 
the experience that we had just gone through in our office. And I think that I did relay that about the two (2) 
female employees who had broken down on the highway." 

76. Notes taken by Britt and introduced by Britt as Ex. 4A and by CC&PS as CC&PS 5 indicate that on 
March 3, Dr. Jarvis asked Britt if she realized positions #25 and #31 were appointed and approved by the 
Govemor, and that on March 31 Mr. Marshbum told Britt she had been rejected due to age and travel. 

77. Beth Crews' husband was, at one time during the Martin Administration, the Deputy Secretary of the 
Department of Corrections, and prior to that Assistant Secretary of CC&PS. Secretary Dean of CC&PS asked 
Marshburn if he had an objection to hiring Crews for position #25. Marshburn was familiar with Crews 
through Dr. Jarvis with whom she had worked, and who was complimentary of her work performance. 
Marshbum responded that he had no objection to hiring Crews. Crews is qualified for the position. 

78 . Jim Butler, who was hired for position #3 1 had been an employee with the Department of Corrections 
for over twenty years. Butler is forty-five (45) years old. Butler was not recommended by either the office 
of the Govemor or a cabinet secretary. 

79. Britt applied for the position of Community Development Specialist in the Office of the Secretary of 
DHR on March 2, 1992 (Ex. 1, #33). The position is graded at Grade 70. Britt was not interviewed. Britt 
met the minimum qualifications for the job. 

80. The job was posted for internal DHR applicants only. Barbara Jordan was hired for the position. 
Jordan was a permanent employee with no RJF priority rights and was recommended by the Office of the 
Secretary of DHR. Jordan is qualified for the position. 

81. Britt applied for the position of Medical Assistant at DHR on April 2, 1992 (Ex. 1, #37). The 
position is graded at Grade 67. Britt met the minimum qualifications for the job. 

82. Angela Haikonen was hired for the position. Haikonen was a permanent state employee, with no RIP 
priority rights. Haikonen was not recommended by the Governor or Secretary of DHR. 

83 . On April 14,1 992, Britt applied for the position of Community Service District Coordinator for Wake 
County (position #09048) at CC&PS. (Ex. 1, #40). The position is graded at salary Grade 64. Britt met the 



8:6 NORTH CAROLINA REGISTER June 15, 1993 496 



CONTESTED CASE DECISIONS 



minimum qualifications for the position. 

84. Britt interviewed for the position on May 7 or 8, 1992. The position was offered to Sherry Goad. 
Goad was not a state employee and had no priority rights for the position. Goad began work in the position 
on June 10, 1992, at an annual salary of Twenty-two Thousand One Hundred Nine ($22,109) Dollars. 

85. Britt was rejected for the Wake County District Coordinator position on May 27, 1992. Ziedman 
testified that Chief District Court Judge Bullock actively participates in the selection of coordinators in his 
judicial district, in an apparent attempt to show why Britt was not hired. There is no evidence that Britt's 
application was placed before Judge Bullock, that he rejected Britt, or would have rejected Britt. 

86. Art Zeldman was the Director of Victim and Justice Services Division with CC&PS, and supervised 
the Community Service District Coordinator positions. On May 27, 1992, Zeidman telephoned Britt and 
offered her a Community Service District Coordinator position in Charlotte. The position is the same position 
and at the same salary Grade as the position #40. Britt lives in Durham, so the position was well outside a 
thirty-five (35) mile radius of her home. Britt turned the position down, but did not forfeit her RIF rights. 

87. On April 24, 1992, Britt applied for the position of Director of Volunteer Services III at Dorothea 
Dix Hospital, a position within DHR. (Ex. 1, #45). The position would be graded at salary Grade 70. 

88. Also on April 24, 1992, Britt applied for the position of Director of Volunteer Services II at Dorothea 
Dix Hospital, a position within DHR. (Ex. 1, #46). The position is graded at salary Grade 68. Britt met the 
minimum qualifications for the position. 

89. Britt interviewed for both jobs on May 15, 1992, and learned that the Director III job did not exist. 
(Ex. 1, #45). 

90. Faye McArthur was hired for the Director II position. McArthur had been serving in the position 
of Volunteer Services Coordinator at Dorothea Dix, a position supervised by the Director II position. 

91. McArthur was not a permanent state employee and was recommended by Secretary Flaherty for the 
promotion. McArthur is qualified for the position and vacancy. 

92. On June 9, 1992, McArthur interviewed Britt for the position she had just vacated. Volunteer Services 
Coordinator at Dix (Ex. 1, #63). McArthur offered the job to Britt on June 15, 1992, and Britt accepted the 
position. 

93. Secretary Flaherty played an active role in getting McArthur promoted and Britt hired in the 
Volunteer Services Coordinator position (salary Grade 63). 

94. When McArthur vacated the Coordinator position she was earning Twenty Thousand Five Hundred 
Twenty-one Dollars ($20.521 .00). Secretary Flaherty had stated the position when the RIF took place in June 
1991, that should employees be re-instated, it should be as close as possible to the salary they left. Britt was 
employed in the Coordinator position at an annual salary of Twenty-nine Thousand Eight Hundred Fifty-two 
Dollars ($29, 852. (X)), the maximum salary for a grade 63 position. The salary represented a cut of Seven 
Hundred Ninety-nine Dollars ($799.00) and a drop of three (3) grades. 

Based on the foregoing, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. DHR failed to follow procedures applicable in RIF cases. The evidence is insufficient to conclude 
that CC&PS failed to follow procedures mandated by law. 

2. DHR denied RIF priority rights to Britt when it failed to hire her for the following positions listed 



497 8:6 NORTH CAROLINA REGISTER June 15, 1993 



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CONTESTED CASE DECISIONS 



on Petitioner's Ex. 1: 

a. #1 

b. #23 

3. CC&PS denied RIF priority rights to Britt when it failed to hire her for position #40 on Petitioner's 
Exhibit #1. 

4. Secretary Flaherty has no personal animus towards Britt. Secretary Flaherty has been Britt's patron. 
The conclusion of law that DHR discriminated against Britt because of political affiliation could not be based 
on the personal actions or intent of Secretary Flaherty. 

5. Rather, the conclusion that DHR or CC&PS discriminated against Britt because of political affdiation 
is based on a systemic priority being given to applicants who are recommended by the Governor or cabinet 
secretary over a qualified applicant who had RIF status and who was not recommended by the Governor or 
cabinet secretary. 

6. Assuming, for the purposes of this conclusion of law only, that Mr. Marshbum's version of his 
conversation with Mrs. Britt is correct, Britt established a prima facie case of age discrimination with regard 
to position #31. 

7. CC&PS rebutted the prima facie case by showing that it hired a qualified person who, as a permanent 
state employee, had priority consideration. 

8. Britt's evidence does not show that the legitimate non-discriminatory reason offered by CC&PS for 
hiring Butler rather than Britt is pretextual. 

9. Britt established a prima facie case of political discrimination against DHR with regard to six (6) 
positions listed on Petitioner's Exhibit #1: 

a. #9 c. #20 e. #33 

b. #15 d. #23 f. #46 

10. DHR was able to show a legitimate, non-discriminatory reason for its action in six (6) positions. 

1 1. Britt's evidence does not show that the reasons given by DHR were pretextual. 

12. Britt established a prima facie case of political discrimination against CC&PS with regard to position 
#25 on Petitioner's Exhibit #1. 

13. CC&PS was able to show a legitimate non-discriminatory reason for hiring Crews. 

14. Britt's evidence does not show that the reasons given by CC&PS are pretextual. 

Based on the foregoing, the undersigned makes the following recommendation to the Personnel 
Commission: 

RECOMMENDED DECISION 

It is recommended that Britt be compensated as if she had been placed in position #1 by DHR. 

Accordingly, Britt should be paid by DHR the salary she was receiving when she was RIFed, together 
with any legislative raises, from and after September 20, 1991. Since position #1 is a Grade 66, this relief 



8:6 NORTH CAROLINA REGISTER June 15, 1993 498 



CONTESTED CASE DECISIONS 



i 



will necessarily result in a raise beyond the maximum salary for a Grade 63 position, from September 20, 
1991 until Britt retires. 

DHR should reimburse Britt for health benefits, vacation, and sick leave lost between September 20, 
1991 and June 6, 1992. 

With regard to Britt's probationary status, the time between September 20, 1991 and June 6, 1992 
should, at the least, be credited towards Britt's status as a permanent employee. The fact that Britt was placed 
in a probationary status, rather than permanent, after long years of service with no evidence of any discipline 
is shocking, and it is further recommended that Britt be returned to her pre-RIF status as a permanent 
employee. 

Reasonable attorneys fees should be re-couped from DHR and CC&PS. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36Cb) to serve a copy of the final agency decision on all parties 
and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. ^ 

The agency that will make the final decision in this contested case is the State Personnel Commission. 

This the 26th day of May, 1993. 



Thomas R. West 
Administrative Law Judge 



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499 8:6 NORTH CAROLINA REGISTER June 15, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTHl 



1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 


10 


6 


Council of State 


General Contractors 


12 


7 


Cultural Resources 


Cosmetic Art Examiners 


14 


8 


Elections 


Dental Examiners 


16 


9 


Governor 


Dietetics/Nutrition 


17 


10 


Human Resources 


Electrical Contractors 


18 


11 


Insurance 


Electrolysis 


19 


12 


Justice 


Foresters 


20 


13 


Labor 


Geologists 


21 


14A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 


22 


15A 


Environment, Health, and Natural 


Landscape Architects 


26 




Resources 


Landscape Contractors 


28 


16 


Public Education 


Marital and Family Therapy 


31 


17 


Revenue 


Medical Examiners 


32 


18 


Secretary of State 


Midwifery Joint Committee 


33 


19A 


Transportation 


Mortuary Science 


34 


20 


Treasurer 


Nursing 


36 


21 


Occupational Licensing Boards 


Nursing Home Administrators 


37 


22 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 


Opticians 


40 


24 


Independent Agencies 


Optometry 


42 


25 


State Personnel 


Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Commission 


58 






"Reserved" 


59 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 



Speech & Language Pathologists & Audiologists 64 
Veterinary Medical Board 66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



8:6 



NORTH CAROLINA REGISTER 



June 15, 1993 



500 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 

401 - 455 5 - June 

456 - 502 6 - June 



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Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Level Radioactive Waste Management Authority, 232 

ADMINISTRATIVE HEARINGS 

Civil Rights Division, 370 
General, 366 
Rules Division, 367 

COMMERCE J 

Alcoholic Beverage Control Commission, 408 ^ 

Banking Commission, 408 

Savings Institutions Division: Savings Institutions Commission, 461 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 279 
Departmental Rules, 465 
Environmental Management, 210 
Health Services, 283, 335, 425, 465 
Marine Fisheries, 28 
Soil and Water Conservation, 214 
Wildlife Resources Commission, 32 
Zoological Park, 337 

FINAL DECISION LETTERS 

Voting Rights Act, 4, 407, 460 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 93, 229, 332, 401, 456 

HLTVL^N RESOURCES 

Facility Services, 94 

Medical Assistance, 25, 414 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413 

Social Services Commission, 237 



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501 8:6 NORTH CAROLINA REGISTER June 15, 1993 



CUMULATIVE INDEX 



INSURANCE 

Medical Database Commission, 463 

JUSTICE 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Private Protective Services Board, 252 

LABOR 

OSHA, 97, 231, 278 

LICENSING BOARDS 

Architecture, 43 

Geologists, Board of, 285 

Mortuary Science, Board of, 45, 342 

Nursing Home Administrators, 346 

Pharmacy, Board of, 47, 354 

Physical Therapy Examiners, 53 

Plumbing, Heating and Fire Sprinkler Contractors, 360 

Real Estate Commission, 53, 364 

Social Work, Certification Board for, 428 

LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290, 432 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427, 470 

STATE PERSONNEL 

Office of State Personnel, 286 

STATE TREASURER 

Retirement Systems, 337 



8:6 NORTH CAROLINA REGISTER June 15, 1993 502 



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